. The present appeal is from an order of the Circuit Court reversing an award of the Industrial Commission in favor of claimant. Claim was filed for the death of Earl A. Toole, claimant’s husband, and she was awarded, on December 21, 1954, the sum of Thirty Dollars per week for four hundred weeks, or until her'prior death or remarriage, plus burial expenses and medical aid. It was admitted, expressly or by necessary inferences: that the deceased was, at the time of his injury, an employee of Bechtel Corporation; the employer; that the parties were subject, tó the Missouri Workmen’s Compensation Law, Section 287.010 et seq. RSMo 1949, V.A,M.S.; that the employee died on April 23, 1953, as a result of injuries sustained on February 6, 1953, while an employee; that the employer was insured by Pacific Indemnity Company; that the claimant was and is the only dependent ; and that the average weekly wage of .deceased was at least Sixty Dollars. The answer of the employer was essentially a general denial, but the actual and sole issue developed was whether the injury arose out of and in the course of the employment. The findings of the Commission will be referred to later.
The deceased, Earl A. Toole, was a laborer, 50 years, old, living in St. Louis. He had been working as such for this employer for a year or more on a large construction *877 job in St. Louis County, specifically, a plant for Lever Bros. He was brought to this job by his brother-in-law, Richard C. Williams, the labor superintendent. Deceased had no children of his own, but his wife had' a grown son and a daughter, one or more grandchildren, and also nieces and nephews;' two of these nephews were working on this same job.
About two months prior to February 6, 1953, Williams, the labor superintendent, placed deceased in charge of the “toolroom” where all tools for the laborers and carpenters were kept and issued. This “room” was actually a space in the southeast corner of a galvanized steel warehouse building, enclosed on two sides by the building wall and on the other two by a partition of poultry wire with wooden framework. To the west of this “room” was a space used by the pipefitters for storing and issuing material; a door made of two by fours and poultry wire led from the toolroom into this pipefitters’ space. Another door in the south building wall led from the pipefitters’ space to the outside; this door was fitted with a Yale lock, whereas the inner wire door was locked with a hasp and a padlock. There was a sliding window at the south end of the toolroom through which tools were issued, and there were various bins where the tools were kept. An employee known on the job as Barney Barts (sometimes spelled Bartz,' and whose real name was said to be Albright or Aubright) was in charge of the material for the pipefitters.
There was no requirement that deceased remain- in the toolroom at lunch time, but he often ate his lunch there. He had been instructed that when he left he should lock the wire door. About 90% of the employees ate lunch on the premises; for the lunch period was only half an hour, from 12:00 to 12:30. Williams,- the labor superintendent, testified that he put deceased in charge of the toolroom because he had “not been feeling good” and the job was “getting short,” i. e., they were cutting down the -force; later on re-direct examination he said that a previous substantial loss of tools, which the superintendent had told him about, was “one reason I took the other man’out.”
On Friday, February 6¡ 1953, Toole was seen at his regular work about 11:00 A. M. and perhaps as late as noon; at about 12:20 P. M. a workman called in to a small group of laborers eating lunch in the nearby labor shed that the man in the toolroom had been hurt; they, including two or- three of deceased’s relatives, ran to him. They found no one else in the building, the outer door open and the wire door leading to the tool-room open. Deceased was lying on the floor in about the center of the toolroom; his head was bloody and there was a pool of blood on the floor; the top of his thermos bottle and most of a cigarette were on the floor in or near the blood, as was his cap; the bottle was on a bench. It was first thought that he had been struck on the head, and some time elapsed before it was learned that he had been shot. He was conscious but spoke only of pain and of his legs. An ambulance was called , and he was taken promptly to the St. Louis County Hospital. It was found that he had been shot four times, once in the right, temporal region, once in the lower left side (that bullet lodging near the spine), and twice in the left leg. He was operated on that night, chiefly to suture a perforated intestine, but no attempt was ever made to remove the bullets from the more serious wounds.
No one was found who admitted hearing any shots.. Several witnesses testified that when deceased was found, or shortly thereafter, they saw nothing in the toolroom which appeared to have been disturbed or to be out of order; one witness, a partner of one of deceased’s nephews by marriage, testified that when he was later placed in charge of the toolroom at 1:30 P. 1VL for the remainder of the afternoon, some tools were on the floor and some on benches (which apparently seemed out' of place to him), but he admitted that he did not really know whether this was unusual or not. By 1:30 P. M. many persons had been in the place. The testimony of. this witness, taken as a whole, was rather equivocal. All testified that there was- nothing seen to indicate a fight or struggle; there was no evidence whatever that anything was missing from the toolroom, either on the date deceased *878 was shot or at any time during the period when he had been in charge.
Barney Barts was said to have left the plant at 4:30 P. M. on February 6, 1953; no one, however, testified to seeing him at any time after the shooting, and various witnesses testified that they did not see him after that date. An arrest order was issued for him, the officers looked for him, and he was presumably a fugitive at the time of the hearing. Investigation was made by the sheriff’s office and by the local police; no one was found who saw the shooting, although one witness testified that deceased stated that one Baker and another were present. Baker declined to testify at the coroner’s inquest. The other man flatly denied all knowledge of the shooting. There was much evidence from claimant’s witnesses that deceased had never had any quarrels, disputes or trouble with anyone on this job; there had been no labor violence and only a few apparently minor jurisdictional disputes which were promptly settled by the Building Council. For whatever it may be worth, there was evidence that deceased had served a term for manslaughter in the Illinois Penitentiary beginning about 1926. The actual record was excluded on obj ection. There was also considerable evidence that he was a peaceful man and that he got along well with everyone. The entire transcript of the evidence taken at the coroner’s inquest was received in evidence, and certain of our references to the facts are taken from that evidence.
In the hospital deceased had a private, room for eight to ten days’; he was then put in a two-bed room with one Ross who had been shot, and upon whom there was a sheriff’s guard. There was considerable controversy concerning the rationality and mental condition of deceased after he was shot. The - claimant and most of her witnesses testified, in substance, that he was “not himself,” except perhaps for a few minutes at a time, and that he very frequently talked of impossible things; however, he was not unconscious and he frequently did talk. He recognized the family and spoke to them. The hospital pathologist described the physical injuries, and from. the hospital record, stated that Toole developed hallucinations “about a month after admission,”. but that during periods when he did not have hallucinations he was “apparently considered normal.” His physical condition gradually declined, and a purulent meningitis' developed, with terminal pneumonia. He died on April 23, 1953.
The deceased did not tell any of his relatives the circumstances of the shooting, nor the identity of the person who shot him. Some of them asked him about this, but he either remained silent, closed his eyes, or (to one) said thqt this was “his business” and that they had nothing to do with it. There was evidence that three deputies of the sheriff’s office talked with him on different occasions about the shooting; one was the special deputy who was guarding Ross in a nearby room and had become acquainted with Toole; the other two were regular deputies who had been assigned to the investigation. The special deputy, Uttendorf,. testified: that deceased told him that he was sitting on a keg drinking his coffee, when Barney Barts came in, as he thought, to-show him a revolver; that, however, Barts came up to him and started firing; that they had had no quarrel, that there was no reason for it, and that Barts could not have had any reason; that he had had an argument with one Baker, but did not explain what. . This witness further testified that deceased told him the same things on one-subsequent occasion, but thereafter would say ho more; that sometimes his talk was, rambling. The testimony of the two regular deputies, one of whom, Burke-, testified only at the coroner’s inquest, was in substance: that on the evening of the shooting deceased merely closed his eyes when they attempted to question him (which is entirely understandable) ; that a day or two later they questioned him again, and he then stated that, as he sat in the toolroom on a keg, another employee came in, cursed him and shot him; that this was done without any reason and that he did not know why he-was shot; that he knew who his assailant was, but that he would not give his name;, that deceased seemed rational at the time and made direct answers. Burke testified *879 at the coroner’s inquest that about four or five days after the interview just related, and after they got Uttendorf’s report, deceased corroborated to them his statement to Uttendorf and named Barney Barts as his assailant, but further said, when he was told that there was an arrest order out for Barts: “don’t bring him around here because I won’t identify anybody.” These men apparently talked to deceased on at least five or six occasions. Both Burke and Mueller testified that deceased subsequently became reluctant to discuss the matter; Burke said that deceased stated that “he didn’t want anybody taking care of his trouble; if he got well he’d take care of it.” Burke also said that deceased “possibly” would not tell his relatives anything because he did not “want them to be involved.” These two deputies made official reports of their first three interviews with the deceased.
On February 12, 1953, six days after the shooting, an attorney for the insurer, accompanied by an official court reporter of a division of the circuit court, interviewed deceased in his hospital room with no one else present, and took a statement in question and answer form. This was written at the time in shorthand and was later transcribed. Both the typed version and the shorthand notes were introduced and read at the hearing. We have examined both and they differ only in nonessential details. The substance of this statement was: that the shooting occurred during the lunch hour, just as deceased had eaten his sandwich and was drinking his coffee; that his assailant was an employee “with the steamfitters,” that the-shooting had no connection with his work or duties whatsoever, that the assailant was not trying to steal anything and deceased was not trying to protect the property; that the man just walked up to him and started shooting and he “just went berserk; that’s all”; that he shot deceased twice, and then shot twice more after he fell; further, that deceased had had no trouble or argument with the man whatever, that he had no business with him on the job, and that he was “supposed to be friendly.” Deceased also denied any and all connection with a supposed “payroll pool” on that job. He stated that he preferred not to give the name of his assailant, but said also that the “police” had it, although he had not given it to them. In this statement deceased also gave many details such as his address, the period and types of employment, the date of a previous injury, his various family relationships, the numbers of certain union locals and the method of operating the toolroom. In this statement the answers are direct and to the point. It seems to be admitted on all sides that deceased had never had ány form of trouble or' difficulty with any one on this job, except for a possible quarrel with one “Baker,” which stands wholly unexplained.
Both ■ the referee and the Commission awarded compensation to claimant, with substantial allowances for medical expense and burial, totalling $13,721.28. On the essential issue here, i. e., whether the shooting arose “out of” deceased’s employment the Commission found that the death “arose out of something intimately connected with his employment.” The circuit court reversed this award, and in doing so filed an instructive memorandum opinion.
The burden is always upon the claimant to show that the injury in question arose “out of and in the course of” the employment. Duff v. St. Louis Mining and Milling Corp., Banc,
It has been held that when an employee is found injured at a place where his duty required him to be, a'rebuttable presumption arises that he was injured in the course of and in conseqúence of his employment. Mershon v. Missouri Public Service Corp.,
The issue now resolves itself into two questions: (a) Is there competent and substantial evidence to support the finding of the Commission that the death arose “out of” the employment? and, (b) Is that finding contrary to the overwhelming weight of the evidence? If the first question -is answered in the negative or the second in the affirmative, the award cannot stand. Wood v. Wagner Electric Corp., Banc,
We fully recognize the oft-repeated principles urged by the claimant to the effect that- we must consider the evidence-in the light most favorable to her, and that the reviewing court should defer to the Commission’s determination of the credibility of oral testimony; Powers v. Universal Atlas Cement Co., Mo.App.,
We look now to the evidence, direct and circumstantial, to see what there may be to support the finding that the shooting arose
*881
“out of” the employment. We shall examine this first without reference to the various statements and admissions made by deceased, for the claimant insists that these could be wholly disregarded. The deceased was shot while in .his place of employment' and there is a hearsay statemént in the record that there had previously been a substantial loss or shortage of tools; there .was also evidence, coming in more or less as an afterthought, that this was one reason for replacing the prior attendant-; there is. also the equivocal and somewhat conflicting evidence of one witness that when he later went on duty in the toolroom (at 1:30 P. M.) some of the tools were out of place, i. e., on the floor or on benches, but that he did not know whether this was unusual or not. We may say here that this latter evidence does not, in- our opinion, constitute substantial evidence of an attempt to steal tools or< of the death of deceased in protecting the property. So far as the prior shortages are concerned, the question is not what had happened before, but ;what occurred on February 6,. 1953. All agreed that, there was no evidence of a struggle. There was also evidence that Barts disappeared during or at the end of the day of the shooting; claimant’s evidence showed that deceased had had no quarrels or disputes on the job. ' We cannot see- in this evidence anything which serves as a reasonable basis for a conclusion that the shooting arose “out of” the employment, or that it was caused “by something intimately connected with his employment,” as the Commission found. The wording of that finding, in itself, tends to show an inability to find anything concrete in the evidence, although the expression was used as a generality in the case of Macalik v. Planters Realty Co., Mo.App.,
The right of the Commission to disbelieve the employer’s witnesses cannot, in and of itself, supply or sustain claim-ant’s affirmative, burden of proof, or supply a missing and essential element in claimant’s case. Klotsch v. P. F. Collier & Son Corp., Banc,
In the case of Long v. Schultz Shoe Co., Mo.App.,
In Lardge v. Concrete Products Mfg. Co., Mo.,
It will be impossible to discuss all of the cases cited by counsel for claimant. Of these, the cases of Kaiser v. Reardon Co.,
For an additional reason we hold that the award may not be sustained. The various and sundry statements and ad
*883
missions of the deceased were wholly un-contradicted or impeached except for the somewhat vague assertions of claimant and her relatives that he was irrational at all times after the shooting, except perhaps for a few minutes at a time. The latter testimony is opposed to the only medical evidence in the case, and to the context of a rather lengthy and detailed statement taken from deceased, by an official court reporter in question and answer form, in which deceased stated many details of various matters and subjects. To the layman this statement seems entirely rational. In these statements, considered collectively, deceased stated that the , assault, although made by a fellow employee, had nothing to do with the employment and had no connection with his work, that the assailant was not trying to steal anything, that deceased was not protecting the property, and that he had had no trouble with the man previously, about the work or otherwise. The making of these statements was testified to by five different witnesses and covered a period of approximately seven to ten days after the shooting. The testimony of one of these witnesses, the special deputy sheriff, was and is especially attacked as incredible, but we may disregard it entirely and the result would be the same. We do not hold that these statements were conclusive ; but they may be considered when we consider the over-all effect of all the evidence and whether the Commission “could have reasonably made its findings, * * * upon consideration of all the evidence before it;” Michler v. Krey Packing Co., Banc,
The order and judgment of the circuit court reversing the award of the Industrial Commission is hereby affirmed.
All concur.