Opinion
No. 28260.
December 18, 1951. Rehearing Denied January. 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM B. FLYNN, J.
J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for appellants.
Samuel J. Goldenhersh, Arthur Litz and John Harvey, St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis, affirming an award of compensation and burial expenses in favor of claimant, Anna Belle Jordan and against the employer, Chase Hotel, incorporated, and its insurer, Maryland Casualty Company.
Claimant is the widow of Nathaniel Jordan who met his death on July 27, 1949, in circumstances as will be set out later.
Claimant's husband was employed in the housekeeping department of the Chase Hotel operated by the employer and located at Lindell and Kingshighway Boulevards, which point is in the central and western portions of the City of St. Louis. The deceased had worked at the hotel for several years. He and the claimant lived at 4623 Vernon Avenue, which address is about twelve blocks north of the hotel. Deceased's immediate superior was Miss Mary McDermott, the housekeeper, who had seventy-five or eighty employees under her supervision. She had charge of the clearing of the sleeping rooms and apartments in the hotel, venetian blinds, windows, floors and dining rooms. Deceased was employed as a drapery man — when draperies and curtains were soiled it was his duty to take them down and replace them with clean ones. Draperies and bolts of undyed drapery materials were kept in the sewing room located on the 9th floor of the hotel. The sewing room was never locked and the employees went in and out throughout the day. A service elevator which is operated to the basement is near the sewing room at the back of the building. A small piece of material of the color a bolt is to be dyed is attached to the bolt and the bolts are kept in the sewing room until such time as it is desired to have them dyed.
Deceased usually left home about 7:45 a. m. to report for work. On July 27, 1949, the day he was killed Miss McDermott received a telephone call from him about 9 a. m. stating that he had to go to the down town section of the city to transact some personal business. She told Jordan to come in, that they were very busy and had to have some draperies put up in the Regency room and Chase Club, both of which are dining rooms.
Deceased and claimant left their home about 9:40 a. m. and went to the Metropolitan Loan Company located at 722 Chestnut St. in the down town business section, being the eastern and central portions of the city. Deceased and claimant arrived at the loan office shortly after 10 o'clock. There Jordan borrowed $240 and left the office about 11 o'clock. He gave claimant $150 and told her to pay the taxes on the Vernon Avenue property — then they separated. Deceased was killed when a Ford Station Wagon driven northwardly on Pennsylvania Avenue by him was involved in a collision with an east bound automobile at the intersection of Pennsylvania Avenue and Miami Street, which point is in the southeastern portion of the city. The collision occurred about 2:30 or 2:45 p. m. The Station Wagon was owned by the 220 North Kingshighway Corporation, operator of the Park Plaza Hotel located at that address. The Park Plaza Hotel and the Chase Hotel are adjacent and the cars of the Park Plaza Hotel were commonly used by employees of the Chase Hotel in carrying out their work at the Chase Hotel. Both Hotels were under the general ownership, management and control of the same persons resulting in the common use of the cars.
The evidence was that the employee Jordan reported for work on the day of his death about 11:53 a. m., called Miss McDermott by telephone and asked what she wanted him to do. She told him to go to the Regency room and the Chase Club and put up drapes. After that she saw him between 12:00 and 12:30. He was then using the telephone in her office and he told her he was going to the AAA Dyers. She told him to go to the Chase Club and never saw him again. The only instruction she gave him was to hang the drapes in the Regency room and Chase Club. She did not tell him to go to the AAA Dyers and did not authorize him to use the Station Wagon.
Taking materials to the dyers was a duty not regularly assigned to any employee but different employees had been directed to do this work as the occasion arose. Jordan had performed that duty on several occasions and Miss McDermott at times directed him to make deliveries to the AAA Dyers.
While Miss McDermott was Jordan's immediate superior, Mr. Jones, manager of the hotel, Harold Koplar, Vice-President of both the Chase Hotel, Incorporated, and 220 North Kingshighway Corporation and a Miss Bilger, immediate superior to Miss McDermott, had authority to send Jordan on a mission. A Mr. Reiser was connected with the Chase Hotel as a decorator and although his exact status is not clear from the evidence it appears from the testimony of Mr. Koplar that he had considerable authority in the direction of work in decorating about the hotel.
Claimant has the burden of establishing that the death of Jordan arose out of and in the course of his employment. The Industrial Commission found that it did so result. "It has been said that an injury arises `out of' the employment when there is a casual connection between the conditions under which the work is required to be performed and the resulting injury; and that an injury to an employee arises `in the course of' his employment when it occurs within the period of his employment, at a place where he may reasonable be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto."
Fowler v. Baalmann, Mo.Sup., 234 S.W.2d 11; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530.
Appellant contends that claimant has not met this burden. Under Section 22, Article V, 1945 Constitution, this court must decide whether the Industrial Commission could have reasonably made its findings and reached its result, upon consideration of all of the evidence before it. If the Commission's decision is clearly contrary to the overwhelming weight of the evidence, it must be set aside. If the finding is supported by competent and substantial evidence upon the whole record, it should be sustained. Of course, this court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.
The evidence in this case establishes that the employee met his death during the provide that he was customarily employed, after he had reported for work and before the hour for him to quit work. This is not disputed by appellant. He had just performed a task that he frequently performed for the employer, that of taking materials to the AAA Dyers and at the time of the accident resulting in his death, was traveling on a street that would reasonably be used in returning to the hotel from the dyers. He was using the means of transportation customarily used by employees in performing such service. Absent the testimony of Miss McDermott that she had not sent deceased on this mission, but had directed him to do other work there could be no question that claimant established her claim.
Appellant contends that since Miss McDermott was the Employee's immediate superior and had directed him to do other work at a time approximately two hours before the accident; he was at the time of the accident acting outside the scope of his employment and that his death did not arise out of or have any causal connection with his employment. It appears from the evidence that the work at the Regency room and Chase Club, which Miss McDermott had directed Jordan to do, had not been completed by him, but was later performed by another employee; also that although Miss McDermott was deceased's immediate superior at least three other persons had authority to give him directions, each of such persons being superior in authority to Miss McDermott. It was indicated that these persons did not customarily practice this authority, but worked through Miss McDermott in assigning any task to an employee in her department. However, there was no testimony that one of them had not so directed the employee in this instance.
We hold that there was substantial evidence offered by the claimant that at the time of the death of the employee he was at a place where he might reasonably be, that he was performing a duty that might reasonably be expected to be performed by him and that the accident occurred during the usual hours of his employment. This being established there was sufficient evidence to support the finding of the Industrial Commission. Even though the immediate superior of the deceased testified that she did not authorize or direct the actual work the employee was doing at the time the triers of fact had substantial evidence upon which to base its finding. The Commission had the right to disbelieve evidence unfavorable to the claimant and to believe the evidence that supported the claim. We hold that the evidence was sufficient to support the award of the Commission. Appellant relies heavily upon Fowler v. Baalmann, Inc., Mo.Supp., 234 S.W.2d 11; Kasper v. Liberty Foundry Company, Mo.App., 54 S.W.2d 1002; Smith v. Seaman Schuske Metal Works Company, 344 Mo. 559, 127 S.W.2d 435.
The holding in each case is readily distinguishable. In Fowler v. Baalmann, the employee flying instructor was on a flight that had been cancelled by the employer because of an unusual danger; the evidence was that his employment had been terminated for that day before he started on this flight. In the case at bar the employment had not been terminated, the deceased had reported for work, he had not been relieved of his work, it was the usual hours for his work and the task he was performing was one frequently performed by him. In the Kasper v. Liberty Foundry Company case the employee was doing something he had not been employed to do, something that he had been ordered not to do because of a specific danger, and because definite skill was required of one performing that work. He was not at the place he could reasonably be expected to be, and he was not doing work that he was employed to do — he was doing something entirely outside the scope of his employment. In Smith v. Seaman the employee had left the work of his employer and was on his way to his home to change his clothes, he was doing this for his own convenience. There was no custom established that he change his clothes for this particular work, and the evidence supports the finding that he had voluntarily left the place of his employer for his own convenience. While the appellant contends the employee Jordan must have had some purpose of his own in leaving the hotel, and that he used the delivery of the drapery as an excuse to leave for his own convenience, there is no evidence to establish the contention. It is not shown that he did anything while out of the hotel except to take the employer's material to the dyers in the usual and customary manner.
We conclude that the Commission's finding that Jordan met his death as the result of an accident arising out of and in the course of his employment is supported by competent and substantial evidence. The judgment of the Circuit Court affirming the award of the Industrial Commission is affirmed. It is so ordered.
BENNICK, P. J., and ANDERSON, J., concur.