Summary
traveling salesman asphyxiated while changing tire in home
Summary of this case from McCollum v. RogersOpinion
June 24, 1931.
1. WORKMEN'S COMPENSATION ACT: Ultimate Facts: Statement of Commission. The provision of the Workmen's Compensation Act (Sec. 3339, R.S. 1929) contemplates that the facts to be found and embodied in a statement by the Commission shall be the ultimate constitutive facts upon which the award can be predicated as a conclusion of law. Facts which are merely evidentiary in character should be excluded from such statement.
2. ____: ____: Accident. A statement of the findings of fact by the Workmen's Compensation Commission that on a certain date the husband of applicant was in the employ of defendant; that he was employed as a salesman; that on said date his death was caused by an accident; that the accident arose out of and in the course of the employment; that the accident happened while he was engaged in the work of salesman for defendant, in this manner: overcome from carbon monoxide gas poisoning caused by automobile running in a closed garage, and that before and at the time of the accident both employer and employee had elected to accept the provisions of the Act, was a statement of the ultimate facts found by the Commission and not conclusions of law, was a finding that there was an accident as defined by the Act, and afforded a sufficient basis under the statute (Sec. 3301, R.S. 1929) for an award of compensation.
3. ____: Findings of Fact by Commission: Special Verdict: Appellate Practice. Upon an appeal the courts are precluded from weighing the evidence or considering questions of the burden of proof, but the findings of fact as made by the Workmen's Compensation Commission are in the nature of a special verdict, and as such are binding and conclusive, if supported by any substantial competent evidence.
4. ____: Death of Employee: Suicide. Where the Workmen's Compensation Commission has found that the death of the employee was the result of an accident, and the facts show that it was an accident unless effected by conditions voluntarily brought about by the employee for the purpose of self-destruction, the court will not hold that his death was intentionally self-inflicted, where there is not a single fact or circumstance in the evidence which points unmistakably to an intention on his part to destroy himself, or from which no other inference than that of suicide can be drawn.
5. ____: ____: Out of: In Course of: Negligence. Where the proximate cause of the employee's death was negligence, the question whether the accident resulting in his death arose out of and in the course of his employment within the meaning of the Compensation Act, is not to be determined by the common-law rules of negligence, nor is it necessary, therefore, that the accident was one reasonably to be anticipated as an incident of the employment, but the question is whether it did in fact arise out of and in the course of the employment.
6. ____: ____: ____: ____: Interpretation: Formula. There is no justification for investing the words "arising out of his employment" used in the Compensation Act with a technical meaning. They are plain, ordinary and every day words, and should be given their plain, usual and ordinary meaning, and every case involving their application should be decided upon its own peculiar facts and circumstances, and not by reference to some formula, though a formula has been adopted by some eminent courts.
7. ____: ____: ____: ____: Salesman: Automobile: Changing Tires: Incident of Employment. Where the employee was employed as a traveling salesman and was furnished by his employer with an automobile to be used in traveling a designated territory and was authorized to keep it in a garage selected by himself, and his death occurred in the garage as he was ostensibly engaged in replacing a flat tire with a good one, he was not employed to change tires, but the changing of the tires was a task incident to his employment as a salesman.
8. ____: Amount of the Award. Under the Compensation Act the award to the young dependent widow, whose husband, an employee of defendant, lost his life by accident, in the course of his employment, cannot be limited to twenty dollars per month for three hundred months, a total of six thousand dollars. [Approving and following Wahlig v. Grocer Co., 325 Mo. 677.]
Appeal from Circuit Court of City of St. Louis — Hon. Frank Landwehr, Judge.
AFFIRMED.
McCarthy, Morris Zachritz for appellant.
(1) The employer is liable to compensate the employee or his dependents only for such injuries as are received as a result of an accident which arises "out of" and in the course of the employment. Missouri Compensation Act, secs. 3 and 7-B; Smith v. Levis-Zukoski, 14 S.W.2d 470; Hager v. Pulitzer Pub. Co., 17 S.W.2d 578; White Star Motor v. Commission, 336 Ill. 117, 168 N.E. 113; Union Indemnity v. Malley, 1 S.W.2d 923; Hopkins v. Sugar Co., 150 N.W. 325; State ex rel. Duluth v. District Court, 151 N.W. 913; Pierce v. Boyer Van-Kuran, 156 N.W. 509. (2) The act covers an employee only when he is engaged in or about the employer's premises where his duties are being performed or where his services require his presence as a part of such services. Missouri Compensation Act, sec. 7-C; Smith v. Levis-Zukoski, 14 S.W.2d 470; White Star Motor v. Commission, 336 Ill. 117, 168 N.E. 113; Union Indemnity v. Malley, 1 S.W.2d 923; Wisconsin Steel v. Commission, 123 N.E. 295; Casualty Co. v. Industrial Board, 169 P. 76; Hallet's Case, 119 N.E. 673; Babineau's Case, 150 N.E. 4. (3) The act does not cover an employee who is engaged in a voluntary act, not known to or accepted by his employer and outside of the duties for which he is employed, or where the employee incurs a danger of his own choosing outside of the reasonable requirement of his employment. Smith v. Levis-Zukoski, 14 S.W.2d 470; Mann v. Glastonburg Co., 96 A. 368, 9 Conn. 116; Brusster v. Commission, 169 P. 258; Russell v. Murray, 15 N.C.C.A. 258; United Disposal Co. v. Commission, 126 N.E. 183; Nelson Con. Co. v. Commission, 122 N.E. 113; Lumaghi v. Commission, 149 N.E. 11; Lancashire Yorkshire v. Highley, 15 N.C.C.A. 210. (4) There must be a proximate connection between the employment and the injury. Unless it is proved that the injury had its origin in a risk which may be fairly and reasonably traced to the service of the injured person and that such injury flowed from such service as a reasonable consequence, no recovery may be allowed. Stocker v. Southfield, 221 N.W. 175, 244 Mich. 13; Smith v. Levis-Zukoski, 14 S.W.2d 470; Hager v. Pulitzer Pub. Co., 17 S.W. 578; White City v. Comm., 163 N.E. 337, 331 Ill. 401; Otto v. Chapin, 220 N.W. 661, 243 Mich. 256; Illinois Oil Co. v. Grandstaff, 246 P. 832; Nesbitt v. Twin City, 145 Minn. 286, 177 N.W. 131; Orsini v. Torrance, 113 A. 924; Clark v. Vorhees, 231 N.Y. 14, 131 N.E. 553; Ex parte Taylor, 213 Ala. 282, 104 So. 527; Wicks v. Cuneo-Henneberry, 319 Ill. 344, 150 N.E. 276. (5) A finding that an injury occurred in the course of the employment raises no presumption that it arose out of the employment. Nesbitt v. Twin City, 145 Minn. 286, 177 N.W. 131; Smith v. Levis-Zukoski, 14 S.W.2d 470; White Star Motor Co. v. Commission, 336 Ill. App. 117, 168 N.E. 113. (6) Under the facts of this case, as a matter of law, there was no accident within the meaning of the Compensation Act. There was no unexpected or unforeseen event happening suddenly and violently and producing objective symptoms of an injury. The injury occurred from ordinary means, voluntarily employed in a not unusual or unexpected way, and deceased was fully aware of the natural and probable consequence of his conduct. Missouri Compensation Act, sec. 7, sub. B; Caldwell v. Ins. Co., 305 Mo. 619; Kutschmar v. Briggs, 197 Mich. 146. (7) Recovery under the Compensation Act must be supported by a preponderance of the evidence. Smith v. Levis-Zukoski. 14 S.W.2d 470; Libby McNeil v. Commission, 157 N.E. 168; Consolidated Coal Co. v. Industrial, 156 N.E. 325; Crews v. Moseley Bros., 138 S.E. 494. (8) The findings of the Commission must rest on fact and not surmise, speculation and conjecture. Smith v. Levis-Zukoski, 14 S.W.2d 470; In re Sanderson's case, 113 N.E. 357; In re Sponatski, 108 N.E. 467; Chicago Daily News v. Commission, 137 N.E. 797; Savoy Hotel v. Industrial Board, 116 N.E. 712. (9) Claimant's theory that deceased had started up the motor of the car in order to change a tire and while so doing was killed as a result of the wind blowing the door of the garage shut is not a reasonable or legitimate inference from the testimony in this case, and is so utterly repugnant to common sense and human knowledge, the very fundamentals of an inference, as to be manifestly false and should be disregarded. Smith v. Levis-Zukoski, 14 S.W.2d 470; Goucan v. Atlas Portland Cement, 317 Mo. 919, 298 S.W. 793; Monroe v. Railroad Co., 297 Mo. 633, 249 S.W. 644; Spain v. Frisco, 190 S.W. 361; Cooley v. Davis, 286 S.W. 412; Burkett v. Gerth, 253 S.W. 199; Campbell v. Nelson, 253 S.W. 199. (10) It is the duty of the Commission to find the facts upon which an award is based and not merely to state its conclusions from the evidence produced. Midland Coal Co. v. Commission, 277 Ill. 333; Bryant v. Foundry Co., 116 So. 345. (11) The provision in section 21 (b) of the act, to the effect, "The death benefit provided for shall be payable in installments in the same manner that compensation is required to be paid under this act, etc.," obviously refers to Section 14 (B) which provides: "But in no case shall the compensation exceed $20 per week."
George B. Whissell and William F. Coyle for respondent.
(1) Appellant's statement that compensable injuries (and respondent's death) under the Workmen's Compensation Act are only such as are the result of an accident which arises "out of" and "in the course of" the employment is admitted, but respondent asserts the findings of the Commission considered here satisfy all the requirements of the law and are in sufficient detail to state ultimate facts, which is what the law requires of such findings. Resumes of the evidence and the statement of evidentiary facts should be avoided. In addition, appellant's attack on findings based on their form comes too late when first heard on appeal. 28 R.C.L. 827; State ex rel. Syrup Co. v. Workmen's Compensation Commission, 8 S.W.2d 899; Kinder v. Car Wheel Foundry Co., 18 S.W.2d 91; 26 R.C.L. secs. 93, 100, 103, 104, p. 1087; Bond v. Williams, 279 Mo. 215, 214 S.W. 202; See 44, Workmen's Compensation Act; Snyder v. Industrial Commission, 297 Ill. 175, 130 N.E. 517. (2) The Act, by its terms, does not limit recovery to employees only when about "employer's premises," as stated by appellant, but covers workmen while in and about the "premises" where their duties are being performed, or where their services require their presence as a part of such services and covers traveling sales representatives while traveling for employer away from employer's premises. Sec. 7 (c), Workmen's Compensation Act. (3) The words "out of" refer to the origin or cause of an accident, and words "in the course of" to the time, place and circumstances under which it occurred; wherefore an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises "out of and in the course of the employment." L.R.A. 1916A, 232; Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458; Fitzgerald v. Clarke Son, 2 K.B. 796, 77 L.J.K.B. 1018; Jackson v. Euclid-Pine Investment Co., 22 S.W.2d 849. (a) Deceased had started the day's work for his employer prior to his death, in the sense understood in the act. Harby v. Marwell Bros., 196 N.Y.S. 729; Chandler v. Ind. Com. of Utah, 208 P. 499; United States Casualty Co. v. Hardware Co., 184 N.W. 694; Manley v. Lumber Co., 221 N.W. 913; Borah v. Motor Car Co., 257 S.W. 145; Aetna Life Ins. Co. v. Schmiedcke, 213 N.W. 292, 192 Wis. 574; London Lancashire Ins. Co. v. Ind. Acc. Com., 170 P. 1074; Donahue v. Casualty Co., 116 N.E. 226, 226 Mass. 595. (b) Deceased's returning to the house to change his clothes did not amount to a quitting of his employment. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Tutie v. Kennedy, 272 S.W. 117; Fidelity Casualty Co. v. Rys. Co., 207 Mo. App. 141, 231 S.W. 277. (c) The changing of this tire was an act arising out of and in the course of deceased's employment. Jackson v. Investment Co., 22 S.W.2d 849; Smith v. Levis-Zukoski, 14 S.W.2d 470; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 114; Manley v. Lumber Co., 221 N.W. 913; Kingsley v. Donovan, 155 N.Y.S. 801; Sexton v. Public Service Com., 180 A.D. 111, 167 N.Y.S. 493; Dagis v. Mfg. Co., 213 Mass. 524, 100 N.E. 620; Brenner v. Heruben, 176 N.W. 228; (4) Respondent admits there must be a proximate connection between the employment and the injury, but that the evidence in this case satisfies such requirement and further establishes that the injury had its origin in a risk which may be fairly and reasonably traced to the service of the injured person and that such injury flowed from such service as a reasonable consequence thereof. Authorities under Point 3. (5) In considering evidence on appeal from an award by the Workmen's Compensation Commission, questions of preponderance of the evidence are not before the appellate court, its duty in such cases being limited to a determination of whether there was sufficient competent evidence adduced, together with fair and reasonable inferences of fact legitimately deducible therefrom to justify the findings made by the Commission upon which it has based the award. Smith v. Levis-Zukoski, 14 S.W.2d 470; Cotter v. Coal Co., 14 S.W.2d 660. (6) The findings are sufficient as being statements of ultimate facts supported by evidentiary facts in the record and are not merely statements of conclusions. They fulfill the requirements of the law as to form. Authorities under Point 1. (7) The Compensation Act does not limit the maximum death benefit to twenty dollars per week for 300 weeks. Wahlig v. Grocer Co., 325 Mo. 677; Sleyster v. Eugene Donzelot Son. 25 S.W.2d 147.
This case comes to the writer on reassignment. It is an appeal by an employer from a judgment of the Circuit Court of the City of St. Louis affirming an award by the Workmen's Compensation Commission to the dependent of a deceased employee. The respondent in her brief fairly outlines the facts as follows:
"In January, 1928, Charles L. Leilich was a young man employed by the Chevrolet Motor Company, a corporation, located at St. Louis, Missouri, in the capacity of traveling sales representative for the Chevrolet Motor Company, being specifically assigned to the territory west and north of the Missouri River, west as far as Mexico, Missouri, and north of Louisiana, Paris and Perry, Missouri, including specifically the city of St. Charles, Missouri. He had been so employed about nine months, and was earning during all of this time $225 per month (admitted), or $2,700 per year. His method of working was to leave from home in a Chevrolet coach, owned by employer and furnished to him by employer for the purpose, and to call on the authorized Chevrolet dealers in his territory in an effort to push sales and assist them with the problems of selling and giving maintenance service. To assist him in this work his employer also furnished him with a portfolio and a number of books and instructions and with a motion picture outfit. He did not always carry along the motion picture outfit, but always carried the books along when working, and it is further testified that he only carried them and used them in his work. After his death they were claimed by employer, along with the Chevrolet car and kit of tire-changing tools and jack, and were returned to employer by deceased's brother. Unless close to St. Louis at the close of his work for the day deceased stopped at hotels along the route, but if close it was customary for him to come home for the night, at which times he was to keep and did keep the car in a garage which he rented in the rear of his home in St. Louis. About once a week he would drive to the Chevrolet Motor Company offices to make his weekly reports and at times to attend meetings for sales representatives.
"Prior to death deceased lived at his home, 5715a Dewey Avenue, St. Louis, Missouri, and there maintained and supported his family, consisting of a wife, the claimant, and two small daughters, all totally dependent on him.
"The accident, according to the undisputed testimony, happened in this wise:
"On Monday morning, January 16, 1928, some time prior to 8:30 A.M., deceased got up as usual to go to work, dressed in his `regular sales clothes', intending that morning to call on a Chevrolet dealer in St. Charles, which call deceased had failed to make, according to schedule, on Saturday of the previous week, on account of roads to Paris and Perry being blocked by the weather. Dependent arose with him and prepared his breakfast, which he ate as usual. Then followed a few minutes of play with his infant daughters, after which he put on his coat, picked up his portfolio, kissed his family goodby and started down the back steps for the garage, promising his wife to be home that night for supper, saying he was only going to St. Charles and had to be back in St. Louis for a sales meeting the next day. This was about 8:30 A.M. A little later he returned with his sleeves pushed up, saying he had a puncture and would have to change a tire. This flat tire was on the rear wheel on the right hand side of the car. The automobile carried a spare tire, and deceased told his wife he was going to replace the flat tire with it. To do this, he said he would change his clothes so as to keep his traveling suit clean for the sales meeting, as the car was, according to dependent's witness, very dirty. . . . Deceased changed his clothes and started back to the garage, about nine A.M., encountering his mother-in-law coming up the steps to help her daughter with the Monday washing. Deceased told his mother-in-law that he had started to work and had discovered a flat tire and had to change it. Deceased returned to the garage, his wife went to the basement to attend to the week's washing, and her mother remained upstairs to watch the children. About an hour later, or somewhere between 9:30 and ten A.M., his wife became worried about his not returning to change his clothes and went to the garage to see what was the matter. There she found her husband lying flat and at full length, unconscious, in the middle of the garage floor, alongside but not under the car, and with a tire-changing tool lying alongside of him on the floor. One wheel was jacked up, the bolts holding the flat tire and rim attached to that wheel were off, and were lying on the running board. The tool was described as one such as is used to remove these nuts for changing a tire. The engine was running and the garage filled with gas and smoke. The windows and door of the garage were all shut, and when the wife tried to open them they blew shut in the wind. She dragged her husband's body to the side door and laid his head on the door sill, to prop the door open and give him air, and shouted for help. Later, she put his head in her lap. Before going to the garage the wife had remarked to her mother about Charles being so long changing a tire. Two or three minutes later she was heard to shout. `Mother, come quick!' The mother ran to the garage and found the wife sitting on the door sill with her husband's head on her lap, holding the door open against the wind. She turned the engine off as the wife did not know how to do it, and went for a doctor. Some nearby workmen were summoned and carried deceased to the alley, where he was attended to by Dr. Paule and Dr. Young.
"Dr. Paule testifies that he found deceased's body as far as visible (that is, the parts not covered by clothing) in a flushed, cherry red condition and, from this and other observations pronounced the case one of carbon monoxide poisoning. Artificial respiration and heart and nerve stimulant injections were given, and finally city fireman came and used a pulmotor. All of this was of no avail, and after a conference of the doctors he was sent to the City Hospital where he was pronounced dead at one P.M. A coroner's inquest and postmortem followed and deceased was buried."
There was evidence tending to show in addition to the foregoing that the appellant not only furnished deceased a car to be used by him in the transaction of its business, but paid all expenses incident to the operation and maintenance of the car; that it gave to deceased and other employees similarly engaged no express instructions one way or the other as to changing a tire; that it was the custom of deceased and other employees, however, to change a tire, if a puncture occurred at the place where such service could not be conveniently obtained; and that the place nearest deceased's garage where he could reasonably have expected to procure the service of any one to take off the deflated tire and put on the spare one, was more than two miles distant.
Deceased had been repeatedly advised by his employer of the danger from carbon monoxide gas attendant upon the running of the motor of an automobile in a closed garage.
It was agreed at the hearing before the Commission that both employer and the deceased employee had accepted the provisions of the Act.
The Commission's findings of facts, so far as material to the controversy here, were as follows:
"1. Was there an accident? Yes. 2. Date: January 16, 1928. 3. Place: St. Louis, Missouri. 4. Was above employee in employ of above employer at time of accident? Yes. 5. Did accident arise out of and in the course of employment? Yes. 6. Before and at time of accident had employer elected to accept Act? Yes. 7. Employee? Yes. . . . 9. Work employee was doing for employer at time of accident? Salesman. 10. How accident happened: Overcome from carbon monoxide gas poisoning caused by automobile running in closed garage. 11. Did accident cause death? Yes."
Based on its findings the Commission made the following award:
"For medical aid the sum of $8. For burial expenses the sum of $150. For death benefits, to Ruth S. Leilich, widow, the sum of $20 per week for 517.5 weeks, or until prior death or remarriage, with remainder to Jean G. Leilich and Gladys V. Leilich, minors, share and share alike."
The findings and award were in all respects affirmed by the circuit court.
Appellant bases its contention that the judgment of the circuit court should be reversed on the following grounds: (1) The facts found by the Commission do not support the award: (2) there was no sufficient competent evidence in the record to warrant the finding (a) that there was an accident, and (b) that the alleged accident arose out of and in the course of the employment; (3) the death benefit awarded is grossly excessive.
I. Section 41 of the Workmen's Compensation Act (Sec. 3339, R.S. 1929) provides that "the award, together with a statement of the findings of fact, rulings of law, etc., shall be Ultimate filed with the record of the proceedings" before the Facts. Commission. This provision evidently contemplates that the facts to be found and embodied in a statement shall be the ultimate constitutive facts upon which the award can be predicated as a conclusion of law. From such statement facts which are merely evidentiary in character should, therefore, be excluded. This is in accord with the general rule which has been consistently followed by this and the other appellate courts of the State with respect to an analogous provision of the Code. [Murdock Dickson v. Finney, 21 Mo. 138, 140; Cochran v. Thomas, 131 Mo. 258, 268, 33 S.W. 6; Fahy v. Grocer Co., 57 Mo. App. 73, 75.]
The statement of the findings of fact in the case at bar is in the form of questions and answers. Reduced to narrative form it would read as follows: On January 16, 1928, Charles L. Leilich was in the employ of the Chevrolet Motor Company; he was employed as salesman; on said date the death of said employee was caused by an accident ("an unexpected or unforeseen event happening suddenly and violently . . . and producing at the time objective symptoms of an injury"); the accident happened while the employee was engaged in the work of salesman for his employer, and in this manner; he was overcome from carbon monoxide gas poisoning caused by an automobile running in a closed garage; the accident arose out of and in the course of the employment; before and at the time of the accident both employer and employee had elected to accept the Act.
That there was an accident, as defined by the Act, and that it arose out of and in the course of the employment were findings of fact, and not conclusions of law; they were ultimate facts, and, with the other constitutive facts found or admitted, afforded a sufficient basis under Section 3 of the Act (Sec. 3301, R.S. 1929) for an award of compensation.
II. Section 44 of the Act provides: "Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall Appellate be conclusive and binding. The court, on appeal, shall Practice. review only questions of law and may modify, reverse, remand for re-hearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award: (4) that there was not sufficient competent evidence in the record to warrant the making of the award." From the foregoing it is clear that on this review of the Commission's findings of fact we are precluded from weighing the evidence; consequently questions of burden of proof and preponderance of the evidence require no consideration at our hands. The findings are in the nature of a special verdict, and as such are binding and conclusive, if supported by any substantial competent evidence. Whether they are so supported is one of the questions of law calling for decision on this record.
(a) The death of the employee was clearly the result of accident as defined in the Compensation Act, unless it was effected through conditions voluntarily brought about by Leilich himself for the purpose of self-destruction. [Jackson Suicide. v. Investment Co., 22 S.W.2d 849; Manley v. Lumber Co., 221 N.W. 913; Cantor v. Elsmere Garage, 212 N.Y.S. 327.] That the evidence shows that his death was intentionally self-inflicted is the contention of the appellant. In this connection it asserts that there was strong circumstantial evidence of suicide which it summarizes as follows: "The evidence disclosed that deceased was a total loss as a salesman and was facing discharge. He was also an inveterate gambler. He knew all about the possibilities of carbon monoxide poisoning. He had not sent in any report of future activities to his employer. Had he really changed the alleged tire he could not have reached the territory until noon. The character of his clothing, the position of his body under the exhaust pipe. The funeral oration preached over him by his uncle."
The sum and substance of the showing that the employee was "facing discharge" was this; he had been a prize-winning salesman, but the sales in his territory during the last two or three months prior to his death had fallen off, and his immediate superior had told him that he would be given thirty days in which to bring about an improvement. The statement that deceased was an "inveterate" gambler is not warranted by the evidence; but more to the point, the evidence does not even tend to show that gambling had ever caused him the least embarrassment, financial or other. There was no competent evidence that his body was found under or near the exhaust pipe. The only person who knew where he was found was his wife, and she testified that he lay alongside the car. Whatever his uncle said in a funeral oration, as implying self-destruction, was pure conjecture, based on rumor and hearsay.
There is not a single fact or circumstance in evidence which points unmistakably to an intention on the part of Leilich to destroy himself, or from which no other inference than that of suicide can reasonably be drawn. The physical facts indubitably show that he was actually engaged in removing a deflated tire when overcome by the gas. His starting the motor and permitting it to run while he was so engaged were entirely consistent with the preparations he was making to start on the trip to St. Charles. It was a January morning and he evidently wanted the engine warmed up and in running condition by the time he had effected a change of tires. The only risk of danger that he invited was permitting the doors of the garage to remain closed while he worked. And his doing so was attributable, all the facts and circumstances considered, to thoughtlessness — negligence — on his part rather than a purpose of destroying himself. If we were the triers of the fact and called upon to weigh the evidence, we would find accident, and not suicide.
(b) It is said that "out of" and "in the course of," as used in the Act, are not synonymous: that an accident may arise in the course of an employment and yet not arise out of it. Out of: In This may be true, but it is difficult to conceive of Course of. an accident arising out of an employment and not in the course of it. But be that as it may, the only question with which we are confronted is whether the evidence was sufficient to warrant the finding that the accident "arose out of the employment."
Since the adoption of workmen's compensation acts, in England and then in this country, there have been many definitions of the phrase "arising out of . . . his employment" essayed by the courts. Some of these definitions, framed by eminent courts in view of the facts of the particular cases before them, have been repeated so often by other eminent courts that they have become formulae, to some one of which, it is thought, the facts of every case must conform in order for compensation to be allowable therein. [Wahlig v. Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Cassidy v. Eternit, 32 S.W.2d 75; Jackson v. Investment Co., supra.] There is no justification for investing the words "arising out of . . . his employment" with a technical meaning: they are plain, ordinary and everyday words, and should therefore be given their plain, usual and ordinary meaning. Every case involving their application should be decided upon its own particular facts and circumstances and not by reference to some formula.
The proximate cause of Leilich's death was negligence, — in running the motor, or in failing to keep open the doors of the garage, while he changed tires. But whether or not the accident resulting in his death "arose out of and in the course of his employment" within the meaning of the compensation act is not to be determined by the common law rules of negligence. It is not necessary, therefore, that such accident should have been one reasonably to be anticipated as an incident of the employment. The only question is whether it did in fact arise out of and in the course of the employment.
"The obligation to pay compensation under the Workmen's Compensation Act . . . is absolute when the fact is established that the injury has arisen `out of and in the course of' the employment. It is of no significance whether the precise physical harm was the natural and probable or the abnormal and inconceivable consequence of the employment. The single inquiry is whether in truth it did arise out of and in the course of that employment. If death ensues, it is immaterial whether that was the reasonable and likely consequence or not; the only question is whether in fact death `results from the injury.'" [Sponatski's Case, 220 Mass. 526, 531.]
Leilich was not employed to change tires, but to sell automobiles. But clearly the changing of tires in the circumstances shown by the evidence was a task incident to his employment as salesman. Out of the performance of that task the accident arose which caused his death. This being obviously true, why split hairs in trying to trace a "causal connection" between his employment and his death.
There can be no question but that the employee in this case at the time of the happening of the accident which caused his death was engaged in, or about, premises where his services required his presence as a part of such services, within the meaning of Section 7 of the Act, now Section 3305, Revised Statutes 1929. [Wahlig v. Grocer Co., supra.]
III. Appellant next insists that the total death benefit which can be awarded under the Act is $6,000, that is, $20 per week for 300 weeks. The same question was presented in Wahlig Amount v. Grocer Co., supra. After a careful and painstaking of Award. consideration of the relevant provisions of the Act, it was ruled adversely to appellant's insistence here. Nothing can be added to what is there said in construing the provisions of Section 21 and those of other parts of the Act incorporated into it by reference; the construction reached is obviously sound. It follows that appellant's contention under this head must be overruled.
The judgment of the circuit court is affirmed. All concur.