Opinion
Opinion filed April 28, 1931.
1. — Workmen's Compensation Act — Finding of Commission — Conclusiveness. The finding of the Workmen's Compensation Commission, if supported by sufficient evidence, like the verdict of a jury, is binding on the appellate court and in the same way becomes the basis for a court judgment.
2. — Same — Same — Appellate Practice — Evidence — Viewed Most Favorable to Support Findings. In considering the question whether the evidence sustains the findings made by the Workmen's Compensation Commission, the appellate court must view the evidence in the light most favorable to support the same, provided, that the evidence in support theref is competent.
3. — Same — Same — Same — Same — Circumstantial Evidence — Inference. The fact that the evidence to sustain the finding of the Workmen's Compensation Commission is circumstantial only as it relates to that part of the finding that the accident arose out of the employee's employment; that does not militate against the finding in the absence of evidence to the contrary, if such evidence has a sufficient basis to warrant the inference.
4. — Same — Same — Presence of Employee at Place of Employment — Presumption. Mere presence of the employee at the place of his employment, under the Workmen's Compensation Act, does not of itself form the basis of the presumption that the accident arose out of and in the course of his employment, because so to hold would cast the burden where it does not belong.
5. — Same — Same — Same — Injury Arising Out of and in Course of Employment — Evidence — Speculation. In a proceeding under the Workmen's Compensation Act by claimant for the death of her husband, where the evidence summarized showed that deceased, who died from blood poisoning, did not appear to have any injury on the morning when going to work, but was seen at noon with a bandaged finger covered with mercurochrome; that there was a box of glass about six feet from his desk which had been there for a number of days and it was his duty to cut such glass in certain sizes, but deceased did not work on it on the morning of the injury but was working on wheelbarrows, held, under the evidence, it was a matter of mere speculation as to how he received the injury and as the evidence failed to show such circumstances as would warrant the conclusion that the injury arose out of and in the course of his employment, it was insufficient to sustain the award of compensation.
6. — Same — Same — Same — Same — Same — Causal Connection. A causal connection must exist between the conditions under which the employee's work is required to be done, and the resulting injury to warrant the conclusion that the injury arose out of and in the course of his employment.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED ( with directions).
Watts Gentry and Arnot L. Sheppard for appellants.
(1) There is no evidence in the record which even tends to show that respondent's decedent received the injury to his finger while he was acting within the scope of his employment, or that such injury arose therefrom. (a) The evidence in the record wholly fails to show where, when or under what circumstances decedent received the scratch on his finger. That the burden rested upon respondent to prove that her husband was injured while in the course of his employment, and that such injury arose out of such employment, admits of no doubt whatever. This record discloses no such proof. Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470; Lezala v. Industrial Commission, 175 N.W. 87, 89, 170 Wis. 532; In re Gorski, 116 N.E. 811, 812, 227 Mass. 456; McMahan's Case, 131 N.E. 167, 238 Mass. 456; Chicago Daily News v. Industrial Commission, 137 N.E. 797, 306 Ill. 212; Freeman Coal Mining Co. v. Industrial Commission, 145 N.E. 615, 315 Ill. 84; Jersey Ice Cream Company v. Industrial Commission, 140 N.E. 862, 309 Ill. 187; Whiting Mead Commercial Co. et al. v. Industrial Commission, 228 P. 352, 67 Cal.App. 618; Sponatski's Case, 108 N.E. 466, 220 Mass. 526; In re Sanders' Case, 113 N.E. 355, 357, 224 Mass. 558; Chrisholm's Case, 172 N.E. 179 (Mass.); Foster's Case, 136 N.E. 77, 78, 242 Mass. 386, 388; Valentine et al. v. Weaver, 228 S.W. 1036 (Ky.); Hubbard v. Republic Motor Truck Co., 185 N.W. 715, 216 Mich. 358; Wiio v. Quincy Mining Co., 187 N.W. 249, 217 Mich. 476; In re Savage, 110 N.E. 283, 222 Mass. 263. (b) It is necessary to base an inference upon an inference to affirm this case: (1) As there is no direct or circumstantial evidence that decedent's injury arose in the course of and out of his employment, or even that it occurred on his employer's premises, if the Court is to so find, it must do so by inference or presumption; (2) but that inference alone will not suffice, and it becomes necessary to indulge in the further inference that such injury also arose out of his employment. It has been repeatedly held in this State that such a course cannot be followed. State ex rel. Mo. Pac. Ut. Co. v. Cox et al., 250 S.W. 551, and cases cited; Sullivan v. Ry., 297 S.W. 945, 950, and cases cited. (c) Like the verdict of a jury, the finding and award of the Workmen's Compensation Commission cannot be based upon speculation and conjecture, but must rest upon a solid foundation of facts. Therefore, where the evidence either fails to disclose when, how or where an employee was injured, or presents two or more theories which might explain the injury, a finding, based on such evidence, is based upon speculation and cannot stand. Rogers v. Packing Company, 166 S.W. 880, 180 Mo. App. 227; Bennett v. Equipment Co., 214 S.W. 244; McGee v. Railroad, 214 Mo. 530; Battles v. Railroad, 178 Mo. App. 596; Strother v. Railroad, 188 S.W. 1102; Grant v. Railroad, 190 S.W. 586; Goransson v. Manufacturing Co., 186 Mo. 300; Marlowe v. Kilgen, 252 S.W. 427; Bowman v. A.C. F., 266 Mo. 53; Wagner v. Railway, 232 S.W. 771; Mahany v. Railway, 228 S.W. 821.
Abbot, Fauntleroy, Cullen Edwards for respondent.
(1) A state or condition having been proved to exist, under the rule of evidence known as the rule of continuity it will be presumed to continue to exist. Greenleaf on Evidence (16 Ed.), secs. 14-1; State v. Jasper, 24 S.W.2d 161; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Pope v. K.C.C. Ry. Co., 99 Mo. 400, 12 S.W. 891; Canty v. Halpin, 242 S.W. 97, 294 Mo. 118. (2) The appellate courts will only consider the evidence most favorable to support the Missouri Compensation Commission's finding. The commission's finding is like the verdict of a jury and the appellate court will look only to the most favorable evidence to support it and it cannot change the award if there is any evidence on which the finding may be based, since the court is not at liberty to weigh conflicting evidence: Wheat v. Whitney Son, 34 S.W.2d 158; Miller v. St. Jos. Trans. Co., 32 S.W.2d 449; Huelsman v. Stute Co., 28 S.W.2d 387; Cobb v. Standard Accident Insurance Co., 31 S.W.2d 573; Cotter v. Valentine Coal Co., 222 Mo. App. 1138, 14 S.W.2d 660; Kinder v. Hannibal Car Wheel F. Co., 18 S.W.2d 91; Perdew v. Neufer Cedar Co., 201 Mich. 520, 167 N.W. 868; Rollins v. Keller Construction Co., 24 S.W.2d 1027; Brewer v. Ash Grove Lime P.C. Co., 25 S.W.2d 280. (3) That the deceased was injured by an accident arising out of and in the course of his employment may be shown by circumstantial evidence. Vulcan Detinning Co. v. Industrial Commission, 295 Ill. 141, 128 N.E. 917; Sparks Milling Co. v. Industrial Commission, 293 Ill. 350, 127 N.E. 737; Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97. (4) The evidence is this case is sufficient to justify the award made by the Workmen's Compensation Commission to the respondent and constitutes sufficient proof that the death of the deceased resulted from an accident in the course of and arising out of his employment; for even slender evidence is sufficient, and facts may be found of which there was no direct proof, the finding being based on inferences arising from the facts proved. Mountain Ice Co. v. Derkin, 144 A. 6; Westman's Case, 106 A. 532, 118 Me. 133; Saunders v. New England Collapsible Tube Co., 110 A. 538, 95 Conn. 40; Huelsman v. Stute Co., 28 S.W.2d 387; Slemba v. Wm. C. Hamilton Sons, 290 Pa. 267, 138 A. 841; Interlake Pulp Paper Co. v. Quinn, 186 Wis. 228, 202 N.W. 175; Vulcan Detinning Company v. Industrial Commission, 295 Ill. 141, 128 N.E. 917; Sparks Milling Company v. Industrial Commission, 293 Ill. 350, 127 N.E. 737; Tennessee Chemical Company v. Smith, 145 Tenn. 532, 238 S.W. 97; Calderera v. Nathan Co., 192 N.Y.S. 737; McRae v. Morgan Wright, 205 Mich. 493, 171 N.W. 394; Kendall v. Department of Labor, 139 Wn. 379, 247 P. 457, affd. in 141 Wn. 481, 252 P. 107; State ex rel. v. District Court, 139 Minn. 30, 165 N.W. 478.
This is an appeal from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the widow of Louis DeMoss who had been an employee of Evens Howard Fire Brick Company.
The only question involved is whether the evidence is sufficient to support the finding of the commission, that the injury the employee received and which caused his death arose out of and in the course of his employment.
Claimant endeavored to have introduced testimony of the deceased's statement as to the circumstances of the injury, but, upon objection, such testimony was excluded. So far as the record discloses, there was no witness to the accident, and, therefore, there is no direct proof to support the finding of the commission.
The evidence upon which the finding was based may be summarized in this way: Deceased left his home on the morning of February 25, 1929; he stopped at his son's home and at that time did not appear to have any injury; during that morning while at his place of employment, sometime before noon, a fellow-workman observed that deceased had the middle finger on his right hand wrapped up; on his way home at lunch the deceased again stopped at his son's home and the latter observed the deceased's wrapped finger, and when he reached home, the wife and daughter of the deceased observed mercurochrome on the finger of the deceased. The fellow workman of the deceased also testified that there was a box of broken glass about six feet from the work bench of the deceased but he had not observed the deceased using that box at anytime or go to it or near it. The foreman under whom the deceased worked testified that the deceased did not report to him that he had suffered any kind of accident; that there was a box of glass on the floor about six feet from the desk of the deceased which had been there for a number of days and which the deceased had asked the foreman to remove; it was the duty of the deceased to cut such glass in certain sizes and he had worked on it some two or three weeks previous to the date of the injury; that the deceased did not work on it on the morning of the injury but was working on wheelbarrows; that when deceased spoke to him about moving the glass he told deceased that when they finished with the job the box would be put away; that he did not give deceased any job on the glass on the day of his injury but that deceased was working on wheelbarrows. About 8:30 on the evening following the injury, deceased suffered a chill and on the morning of the 28th his case was diagnosed as blood poisoning by the attending physician and on March 1 he was sent to the hospital where he died ten days thereafter.
Was the evidence sufficient to warrant the finding of the commission? If it was, such finding like the verdict of a jury, is binding on this court and in the same way becomes the basis for a court judgment. [Hager v. Pulitzer Publishing Co. (Mo. App.), 17 S.W.2d 579; Woods v. American C. I. Co. (Mo. App.), 25 S.W.2d 144; Brewer v. Ash Grove L. P.C. Co. (Mo. App.), 25 S.W.2d l.c. 1091; Rolens v. Keller Const. Co. (Mo. App.), 24 S.W.2d l.c. 1079; Miller v. St. Joseph Transfer Co. (Mo. App.), 32 S.W.2d l.c. 450; Bricker v. Gille Mfg. Co. (Mo. App.), 35 S.W.2d l.c. 664.]
In considering the question whether the evidence sustains the findings made by the commission, we must view the evidence in the light most favorable to support the same, provided, of course, that the evidence in support thereof is competent. [Woods v. American C. I. Co. (Mo. App.), 25 S.W.2d 144 and cases cited; Bricker v. Gille Mfg. Co. (Mo. App.), 35 S.W.2d 664.]
In the present case, as will be observed from the statement of facts, there is direct evidence sufficient to sustain the finding so far as it relates to the occurrence of the accident in the course of the employment, but it is circumstantial only as it relates to that part of the finding that the accident arose out of his employment; but that does not militate against the finding in the absence of evidence to the contrary (Vulcan Detinning Co. v. Indus. Com., 295 Ill. l.c. 147; Sparks Milling Co. v. Indus. Com., 293 Ill. l.c. 354; Tenn. Chem. Co. v. Smith, 145 Tenn. l.c. 536) if such evidence has a sufficient basis to warrant the inference.
We have held that the fact that an employee was on the premises during his regular working hours, and was injured, will of itself form no basis for the presumption that the accident arose out of and in the course of his employment. [Smith v. Levis-Zukoski Merc. Co. (Mo. App.), 14 S.W.2d l.c. 473; Stone v. Blackmer Post Pipe Co. (Mo. App.), 27 S.W.2d l.c. 460.]
In each of those cases, there was positive evidence to overcome any legitimate inference that the injury sustained arose out of the employment by reason of the presence of the employee at his place of employment and his injury there, but this was not the basis of the statement in those cases. It seems quite obvious that the mere presence of the employee at his place of employment, under our statute, cannot of itself form the basis of the presumption stated, because to so hold would cast the burden where it does not belong. Undoubtedly cases have and probably will arise, where the circumstances are such that their disclosure and a showing of the employee's presence there at the time may be sufficient to warrant the finding of an award.
But the present is not such a case. The evidence here shows only that the deceased was a carpenter and was working at wheelbarrows, but there is no evidence whether these were of wood or metal construction, and no evidence that there was anything about them that might cause such an injury. There is evidence also that some distance away was a box of broken glass that some weeks previously the employee was cutting into certain sizes, but the evidence is that he was not working with it on the day of the injury.
It is, therefore, a matter of pure speculation as to how he received the injury. It may have been caused by a pin or other substance about his person, and wholly disconnected with his employment. If the latter, the employer would not be liable for compensation, therefore, the necessity of producing evidence showing the fact of liability, or, in a proper case, the showing of such circumstances as will warrant the conclusion that the injury arose out of and in the course of employment. That is to say, a casual connection must exist between the conditions under which the employee's work is required to be done, and the resulting injury. [Smith v. Levis-Zukoski Merc. Co. (Mo. App.), 14 S.W.2d l.c. 472; Brewer v. Ash Grove L. P.C. Co. (Mo. App.), 25 S.W.2d l.c. 1089; Westman's case (Me.), 106 A. 1. c. 537.
We have examined all of the cases cited by the claimant and we find in none of them the expression of views contrary to those expressed herein.
In view of the fact that there exists a hiatus in the proof that the claimant may be able to supply, the judgment of the circuit court affirming the award of the commission must be reversed, and the cause remanded to the circuit court, with directions to set aside the award of the commission and to remand the cause to the commission for further proceedings not inconsistent with the views expressed in this opinion. It is so ordered. Becker and Nipper, JJ., concur.