Summary
In Howard v. St. Louis Independent Packing Co. et al., Mo.App., 260 S.W.2d 844, claimant's duties required him to carry quarters of beef from one point to another.
Summary of this case from Hall v. Mid-Continent Manufacturing Co.Opinion
No. 28632.
September 15, 1953. Rehearing Denied October 16, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, EUGENE J. SARTORIUS, J.
Alexander Robertson, L. A. Robertson, Ernest E. Baker, St. Louis, for appellants.
Courtney S. Goodman, St. Louis, for respondent.
This is a proceeding under the workmen's compensation law, Sections 287.010- 287.800 RSMo 1949, V.A.M.S. The appeal is by the employer and the insurer from the judgment of the circuit court affirming an award of the industrial commission in favor of the employee for a balance of compensation amounting to $2,039.83.
While there were other matters in dispute before the commission, the sole question on this appeal is whether there is a legitimate basis in the whole record to support the commission's finding that the employee's injury had been by accident within the meaning of the act.
The claim is by Earl W. Howard, an employee of St. Louis Independent Packing Company at its plant at 3815 Chouteau Avenue in the City of St. Louis. The incident out of which the claim has arisen occurred on September 10, 1948, while the employee was engaged in the performance of his duties as a beef lugger, which was the capacity in which he had worked since some time in December, 1943.
The beef luggers carry quarters of beef from a loading platform into refrigerator cars which are spotted immediately adjacent to the platform.
The beef is brought out of a cooler to the loading platform by means of an overhead rail upon which there is a roller from which half a carcass is suspended. The hindquarter of beef is attached to the roller, with the forequarter hanging underneath. The quarters are then carried into the car separately, each by an individual lugger, who proceeds according to a fixed routine in getting the beef upon his shoulder.
Before a lugger starts the routine which he is expected to follow in getting a forequarter upon his shoulder, the forequarter is first severed from the hindquarter except for a rim of flesh which is sufficiently strong to support the weight of the forequarter, but which may be readily cut apart when the moment arrives to complete the separation. An employee known as a cutdown man stands by with a knife with which he severs the rim once the lugger gets in the proper position to take the forequarter upon his shoulder.
The car into which the beef is to be loaded is set down with its door immediately opposite the end of the rail from which the beef is suspended. After certain preliminary movements, the lugger turns towards the door, and as he does so he pushes the forequarter away from himself and towards the door so as to raise it to a height convenient to take it upon his shoulder. As he gets his shoulder underneath the forequarter, the cut-down man completes its separation from the hindquarter, and the lugger then walks forward into the car with the forequarter resting upon his shoulder.
The commission found that there had been an accident, and then made the following specific finding as to how the accident had occurred:
"Employee suffered unusual strain when a forequarter of beef struck his left shoulder with unusual force as he swung said beef on his shoulder."
This finding corresponded to the finding of the referee, and was the basis of the award in the employee's favor, which the circuit court affirmed, and which the employer and the insurer seek to have reversed on this appeal.
As our act is written, the employer's liability is to furnish compensation for the injury or death of his employee "by accident" arising out of and in the course of the employment. Section 287.120(1). In other words, for a disabling industrial injury to be compensable, it must be sustained by accident, which the act defines as an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of injury. Section 287.020(2). It is thus to be seen that the injury itself is not the event but the result which the event produces, so that in a case of the character of the one at bar, where the injury results from the intentional act of the employee in exerting muscular force in connection with his handling of some inanimate object while performing the incidents of his employment, there must be some unusual occurrence, such as a slip, or a fall, or an abnormal strain, in order to bring the case within the coverage of the act. State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40; Kendrick v. Sheffield Steel Corporation, Mo.App., 166 S.W.2d 590; Screeton v. F. W. Woolworth Co., Mo.App., 166 S.W.2d 589; Sciortino v. E. Salia Co., Mo.App., 157 S.W.2d 535; Palmer v. Knapp-Monarch Co., Mo.App., 247 S.W.2d 341; Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257.
In this case the employee admitted that there was no slip or fall, and that the routine he followed in swinging the beef away from him and in turning to receive it on his shoulder was the usual routine, and the same he had followed in all the years that he had been employed as a lugger. In fact, his only contention of anything out of the ordinary was that the forequarter came down upon his shoulder with "an unusual force — more than ever before", which was accounted for by showing that the particular forequarter happened to be a bull forequarter weighing from 275 to 300 pounds according to the employee's testimony, or from 225 to 250 pounds according to the finding of the referee. The employee testified that he felt pain in his back immediately upon receiving the weight of the forequarter upon his shoulder, and that after he had taken a couple of steps inside the car, his knees buckled and he went down in a squatting position.
We cannot escape the conclusion that the evidence was entirely lacking in proof of an accident within the contemplation of the act. Everything that was done was intentionally done, and was done in precise accordance with a fixed pattern as we have already pointed out. While of course it was not until after the forequarter had been completely severed from the hindquarter that the employee could have received its full weight upon his shoulder, there was no claim, and no finding, of any noncompliance with the regular practice on the part of the cut-down man. On the contrary, the latter testified that he did not cut through the rim which held the two quarters together until after the forequarter was resting on the employee's shoulder. Under the evidence the whole trouble was referable to one thing — the weight of the particular forequarter, which, if heavier than most (being a bull forequarter as the employee knew), was nevertheless not beyond the maximum which the luggers were expected to carry. But even so, the strain could not have been regarded as abnormal in the sense of being accidental unless it had been preceded or accompanied by some unusual occurrence, which it was not. Higbee v. A. P. Green Fire Brick Co., supra. In short, there was nothing in the nature of a mishap save the occurrence of the injury itself, which, though unexpected and unforeseen, was merely the result, and not an accidental event producing the result so as to have given rise to the right to compensation.
Because of the absence of evidence to support a conclusion that the employee's injury was by accident, it follows that the judgment of the circuit court should be reversed and the cause remanded with directions to enter up a new judgment reversing the award of the commission. It is so ordered.
ANDERSON, J., and ARONSON, Special Judge, concur.