Pearce v. Modern Sand and Gravel Co.

*825 HOSTETTER, P. J This is an appeal from a judgment of the Circuit Court of Franklin County affirming an award of the Missouri Workmen’s Compensation Commission of $150 for burial expenses, and death benefits of $16.67 per week for three hundred weeks payable to Grace Pearce, widow of Ira Pearce, but conditioned that if Grace Pearce dies or remarries prior to the time said award is paid', then the remainder to be paid to Margaret Pearce and Bernice Rhodes, daughters and dependents of Ira Pearce, employee, in equal shares. Ira Pearce is referred to by witnesses in their testimony as “Dick” Pearce. The alleged accident, which resulted in the fatal shooting of Ira Pearce, occurred on October 14, 1933, while deceased was in the employ as foreman of the Modern Sand & Gravel Company, a corporation, employer and appellant. Under the provisions of Section 3323, Revised' Statutes Mo. 1929, the award was commuted and ordered paid immediately in a lump sum inasmuch as the Sand & Gravel Company had not insured its liability. The claim for compensation set out that the accident occurred on October 14, 1933, as follows: “15. Employee was foreman and was killed by an employee in defense of employer’s business.” The answer to the claim admitted that Ira Pearce was in the employ of the Modern Sand & Gravel Company at its plant at Pacific, Missouri, on October 14, 1933, and stated as follows: “Employer denies all statements made by claimant under question 15 of the claim for compensation; denies that employee was killed by another employee and denies that accident arose out. of the employment. Employer states that employee was killed in a personal quarrel having no relationship whatsoever to the employment. ’ ’ At the hearing before the Commission testimony was offered which *826 developed that deceased Ira Pearce bad been employed by tbe Sand & Gravel Company since January, 1933, and for the last seven months prior to Ms death had been the foreman in charge of the operation of the plant at Pacific, Missouri, at an average weekly wage of $25; that on October 14, 1933, Pearce was shot and killed by George Broyles on the Sand & Gravel Company’s premises; that a few weeks prior to the killing George Broyles, who had been in the employ of the company, at a wage of fifty cents an hour, quit the services of the company. There was testimony to the effect that when deceased was made foreman of the plant that Broyles resented that and complained of putting a man in as foreman over him and and another man who had been in the employ of the company much longer. There was other testimony to the effect that Broyles held Pearce responsible, at least in part, for his not getting sufficient work at fifty cents an hour to properly support his family, and that Pearce conferred with Mr. Stiers, the president of the Sand & Gravel Company, about Broyles ’ complaint, and the president thought they might move him to some work in the mines at Illinois. There was also testimony to the effect that Broyles was dissatisfied with working conditions and quit his job about three or four weeks prior to the time he killed Pearce. Broyles gave as a reason for quitting that he did not get enough work at the plant and that he had been there too long and wanted to make a change; that he thought he would operate a farm and could make more money at that than operating a dragline. There was a six room house on the premises ■ at the plant and Broyles and his wife occupied two rooms; Pearce occupied two rooms as an office and sleeping quarters when he spent the night at the plant, and his two rooms were also occupied by Melvin Martin, another employee; and the other two rooms were occupied by President Stiers whenever he came to the plant. Pearce lived in St. Louis and frequently would go home on week ends and sometimes during the week to spend the night. Melvin Martin, who shared Pearce’s two rooms at the plant, also lived in St. Louis. Testimony was given by Grace Pearce, widow, that in June or July, preceding Pearce’s death she heard Pearce tell Stiers that Broyles had told him that he (Broyles) was a $10 a day man and not a fifty cents an hour man and that he was not getting any repair work to do and that in a subsequent conversation she heard Pearce ask Stiers if Broyles had been in and asked for more money and that Stiers answered, “No,” and that he would prefer that Pearce would handle the matter of Broyles’ complaint, as he was afraid Broyles would cut the cables or set fire to the plant. *827 A few days after Broyles bad quit the employ of the company he returned and engaged in a fight with Pearce, which was witnessed by other employees and who testified that Broyles, who had a knife, told them to stay there that he was going to make Pearce talk as he (Pearce) had insulted Ms wife. Melvin Martin, an employee who saw the fight, testified that Broyles accused of Pearce of trying to break up his .home and said, “You fooled around until you got my job.' If it hadn’t been for you I’d been here yet working,” and that then the fight began. Martin further testified that after the fight Broyles said to him, “You come here, I’m going to give you some of it, too, I’m no St. Louis gangster, I’m here by myself and I’m going to give you some, ’ ’ and that when Tom Broyles, his brother, tried to take him away, he said, “Those St. Louis gangsters are not going to come and run this place.” Pearce reported to Stiers, the president, concerning the fight and that Broyles had accused him of having improper relations with his wife and Stiers told him to go on back on the job that Broyles had had his revenge and would not return from his farm ninety miles away to continue the trouble. After the fight Pearce never stayed at the plant at night, but went to his home in St. Louis and came back the next morning, sometimes coming out and going in with his wife, who frequently visited the plant. Mrs. Pearce further testified that she had an interview with Stiers following her husband’s death, concerning Pearce’s relations with Broyles’ wife and Stiers told her there was nothing to it, that he and Dick were very close and if it had been true Dick would have told him. On October 14, 1933, about two weeks after the fight, Broyles returned to the plant and saw Pearce, who was talking with Mr. Bo-bards, a salesman, and Broyles walked over towards them and drawing his pistol said: “You see I have the gun cocked,” and Pearce begged him to put it down as he would be sorry if anything would happen, saying, “If anything would happen to me what about my family?” and Broyles answered, “You ruint may family,” and Broyles asked Pearce if he-had anything to do with doping his wife with chewing gum and Pearce denied it, then Broyles asked Pearce, “What about the time you paid me fifty cents an hour to go into town when you had a man to do that who was working for twenty-five cents an hour?” and' Pearce denied that; that then Broyles further abused and cursed him and forced him to expose his person and Broyles looked and said, “You diseased s-of a b-,” and shot him, with fatal results. There was no testimony in the record which tended to support *828 Broyles’ charge of improper relations between Pearce and his (Broyles) wife. There was much testimony to the effect that Broy-les generally was -very jealous of his wife and that from' the place where he worked’ on the hoister he was in plain view of the rooms he and his wife occupied and nobody could get in without his knowing it; that often he would take her out in the car and leave her in the car and forbid her- to look at anjr man. He was also prone to get drunk and was drunk on the occasions when he had these outbreaks. There was also testimony tending to show that Broyles was antagonistic to Pearce long before he ever brought up the charge of Pearce insulting his wife. The testimony further showed that Broyles on several occasions made trips to St. Louis to discuss with Stiers, the president, the actions of Pearce in the operation of the plant and criticised them and tried to get the president to change the operations to suit his (Broyles’) idea, and also to the effect that he did not approve of Pearce’s management of the plant and would blame Pearce for failure to get sufficient work to enable him (Broyles) to properly support his family and that Pearce gave the repair work to common laborers. Stiers testified that Broyles sough him to know if he (Broyles) could not be removed to a coal mine they were opening in Illinois, as he was an old’ Monighan operator, and that he told Broyles that he would give him preference as he was an old employee, but that they preferred to keep him at the gravel plant. Other testimony showed that Stiers and Pearce talked of sending him to the mine because of his dissatisfaction at the gravel plant. After hearing all the testimony the ’Workmen’s Compensation Commission, in finding that the testimony showed a compensable case, used the following language: “We' find from the evidence that the death of employee was the result of employee’s working condition rather than any personal relationship between employee and Mrs. Broyles. We find, therefore, that the accident arose ‘out of’ and ‘in the course of’ his employment and his dependents are entitled to compensation as heretofore set out in this award.” The sole question involved in this appeal is whether or not there was substantial, competent testimony to support the finding of the Commission that the accident arose “out of” and “in the course of” Pearce’s employment. It is well settled law that the finding of the Workmen’s Compensation Commission that the accident arose out of and in the course of employment is a finding of fact, which is conclusive on the Circuit Court and on this court, as would be the verdict of the jury if supported by competent and substantial testimony. [Section 3301, R. S. *829 Mo. 1929 (Mo. Stat. Ann., Sec. 3301, p. 8232), Section 3342, R. S. Mo. 1929 (Mo. Stat. Ann., See. 3342, p. 8275); Reed v. Sensenbaugh, 229 Mo. App. 883, 86 S. W. (2d) 388; Bowen v. Hall-Baker Grain Co., 228 Mo. 332, 67 S. W. (2d) 536; Goebel v. Missouri Candy Co., 227 Mo. App. 112, 50 S. W. (2d) 741; Noto v. Hemp & Co. (Mo. App.), 83 S. W. (2d) 136, loc. cit. 137; Borghoff v. Walter Freund Bread Co. (Mo. App.), 93 S. W. (2d) 1032.] It is well settled, also, that in determining whether or not the award made by the Workmen’s Compensation Commission is warranted by the testimony on appeal a court considers only testimony most favorable to support the award, together with all reasonable inferences to be drawn therefrom. [Cottingham v. General Material Co. (Mo. App.), 50 S. W. (2d) 661; Kizak v. Medart Company (Mo. App.), 93 S. W. (2d) 65, loc. cit. 66; King v. Mark Twain Hotel (Mo. App.), 60 S. W. (2d) 675, loc. cit. 677.] If the assault, which resulted in the death of employee Ira Pearce, grew solely out of jealousy on the part of Broyles .on account of his alleged misconduct with Broyles’ wife, it is apparent that compensation to deceased’s dependents should be denied. But, if the assault arose out of and in the course of the employment as a result of the peculiar nature of the employment and the particular work employee Pearce was engaged to do, then compensation should be awarded. [Cranney’s Case, 232 Mass. 149; Harnett v. Steen Co., 216 N. Y. 101; Verschleiser v. Jos. Stern &.Son, 128 N. E. 126; McNichol’s Case, 215 Mass. 497; Martin v. Chase, 194 Iowa, 407, 189 N. W. 958; Sprang v. Broadway Brewing & Malt Co., 169 N. Y. Supp. 574; Stark v. Wilson, 114 Kan. 459, 219. P. 507; Reithel’s Case, 222 Mass. 163, 109 N. E. 951; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S. W. (2d) 601; Teague v. Laclede Christy Clay Products Co., 331 Mo. 147, 52 S. W. (2d) 880; Gilmore v. Ring Construction Co., 227 Mo. App. 1217, 61 S. W. (2d) 764; Keithley v. Stone & Webster Engineering Corp., 226 Mo. App. 1122, 49 S. W. (2d) 296; Jackson v. Euclid-Pine Investment Co., 223 Mo. App. 805, 22 S. W. (2d) 849; Reed v. Sensenbaugh, 229 Mo. App. 883, 86 S. W. (2d) 388.] In Jackson v. Euclid-Pine Investment Co., supra,, this court made the following comments in respect'to the definition of the two phrases “out of” and “in the course of,” viz: “Following the great weight of authority, we.have held that the phrases ‘out of’ and ‘in the course of’ the employment are not synonymous, but are independent of each ’other, though closely related, that the proof of one does not invariably or necessarily establish the other, and that, by reason of the inclusion of both elements in the act, it is incumbent upon the claimant to prove them both, since the showing of the one without the other will not be sufficient to authorize *830 tbe making of an award. [Smith v. Levis-Zukoski Mercantile Co. (Mo. App.), 14 S. W. (2d) 470.] “We have observed from the. reported cases that the comprehensive definition of such terms has proved to be a matter of difficulty in very instance in which the giving of a definition has been found necessary. Generally speaking, it might be said that the phrase 'out of’ refers to the origin or cause of the injury, while ‘in the course of’ refers to the time, place, and circumstances under which the injury was received. This, however, is but a roughly, put distinction, more suitable for the layman than for the lawyer, and obviously too incomplete and unsatisfactory to be the basis for any action, judicial or quasi-judicial in character.” Mindful of the uniform ruling to the effect that the Workmen’s Compensation Commission is clothed with the right and' power to determine the truth of conflicting testimony, and that neither the Circuit Court. nor this court may, on appeal, interfere with such right and power, nor pass on the weight of the evidence, we are constrained to hold that there is sufficient substantial testimony to justify the Commission in awarding compensation in the instant case. It is in testimony as set out hereinbefore that Stiers specifically delegated to Pearce the job of handling Broyles’ complaints, including the one about his not getting sufficient repair work to support his family, as'h'e (Stiers) was fearful that Broyles, being a trouble maker, might cut the cables or set fire to the plant. The further fact- that the testimony tending to show that Broyles was resentful towards Pearce because he was made foreman, in place of himself, and his fault-finding about the operation of the plant while under Pearce’s foremanship, was, when given credence by the Commission, sufficient, substantial, competent evidence to uphold the finding of the Commission that the assault, resulting in Pearce’s death', did not arise out of a mere personal feud between Broyles and Pearce, growing out of the latter’s alleged insults to Broyles’ wife, but did arise out of and in the course of his employ-ment. It follows, therefore, that the judgment of the Circuit Court, ’upholding the award of the Workmen’s Compensation Commission, should be affirmed, and’, it is so ordered. .Becker and McCullen, JJ., concur.