ON MOTION FOR REHEARING. Attorneys for the Sand Gravel Company, employer, have filed a motion for a rehearing containing as one of the grounds the following: "Because the Court included matters *Page 831 and statements in its opinion not included in the abstract of the record."
They argue that there was no testimony introduced on behalf of the dependents tending to show that Broyles found any fault with Pearce, the foreman, as to working conditions and assert that there is no testimony that Broyles murdered Pearce for any reason other than his charge that Pearce had insulted his wife.
It is true, as alleged in the motion for a rehearing, that on the hearing before the Hon. EDWARD C. LYNCH, Referee, the latter gave it as his opinion that from the evidence Pearce did not die as a result of an injury by accident arising out of his employment with the above named employer, therefore, compensation was denied.
Thereafter, the Commission made an order allowing the introduction of additional testimony and the additional testimony was heard by Commissioner SHAW, at which hearing the testimony of Melvin Martin and one other witness was heard.
The following excerpts from the testimony of Melvin Martin, we think, will clearly show that this court did not include any matters and things in the opinion that did not appear in the record.
In describing the fight which occurred about two weeks before the killing, the witness stated as follows:
"George accused Dick of trying to break up his home and he said, `You fooled around until you got my job, if it hadn't been for you I'd be here yet working.' Then the fight started. Dick tried to reason with him but he just couldn't do it. Then they had their fight.
"Q. What happened after the fight; was that all of the conversation that took place at that time? A. Practically; yes, sir. George was drunk and he was cussing and going on, you know.
"Q. Go ahead? A. And after the fight I was standing by the corner of the machine shop and George said, `You come here, I'm going to give you some of it, too.' Meaning me.
"Q. Who was that, George Broyles? A. Yes, sir. He said, `I'm no St. Louis gangster, I'm here by myself and I'm going to give you some. . . .
"Q. Go ahead. A. So I told him we'd never had any trouble and I had tried to be friends with him. Finally Tom, that is George's brother, Tom Broyles and George's wife got him in the car. As he started to get in the car he turned around and said, `I'm coming back and get both you St. Louis son-of-bitches.
"Q. St. Louis son-of-bitches? A. Yes, sir; and Tom said, `Come on, George, and let's go.' And George said, `Those St. Louis gangsters are not going to come and run this place.' Finally Tom got him in the car and they drove off."
Witness Martin further testified: *Page 832
"Q. You were out there (at the plant) from sometime in the middle of June to after this killing took place? A. Yes, sir. . ..
"Q. Do you recall whether during your stay there, prior to this fight, there was any discussion on the part of George Broyles with reference to his not getting enough work? A. Yes, sir.
"Q. And just who did he have that conversation with? A. Well, he spoke to me and complained about it, and he also talked to Mr. Stiers about it. He talked to Dick about it, too.
"Q. Can you fix the date when he first brought that up, how long it was before he left there? A. Not the exact date; no, sir.
"Q. Approximately how long before that? A. I would say approximately six weeks.
"Q. The first conversation he had with Dick Pearce, tell us just what that was. A. He told Dick he wasn't making enough money there to support his family, and if he couldn't get more money he was going to leave there.
"Q. Did he make mention of the distribution of the work, of having the cheaper men do it? A. Mr. Stiers had ordered that the expenses be cut as much as possible and work where we didn't need skilled laborer on common labor was given the work to do. Common labor was used instead of skilled labor whenever it could be done.
"Q. The skilled laborers were the 50-cent an hour men? A. Yes, sir, and common labor got 25 cents an hour, and the 25-cent men were used as far as possible.
"Q. Was there some discussion between them with reference to the distribution of the work? A. Yes; George said he thought he was entitled to all the repair work because he was the oldest man in the service there. We told him the reason for using the cheaper men, and he said it didn't make any difference — he should have all the repair work instead of giving it to the other men.
"Q. Later on was that same question brought up wherein Mr. Stiers was a party to the discussion? A. Yes, sir.
"Q. Who had that discussion, George Broyles with Mr. Stiers or Dick Pearce, if you were present? A. Sure, Dick mentioned it to Mr. Stiers and George mentioned it to him, too.
"Q. Were you present on both occasions? A. Yes, sir.
"Q. Tell us the conversation that George Broyles and Mr. Stiers had with reference to that? A. One night Mr. Stiers was out there fixing to go out fishing and George came down and out where Mr. Stiers was and he told Mr. Stiers that some of the men had been working the day before and he wasn't working, and he asked Mr. Stiers why he had the common labor work and not him. George made the remark then that Dick was running the place and he'd take up for George, meaning Mr. Stiers.
"Q. Was that all there was to that conversation? A. He told *Page 833 Mr. Stiers that he wasn't getting enough out there, he wasn't getting enough work or working steady enough to support his family.
"Q. Now, were you present at any other time, prior to the time this fight took place, wherein George Broyles' employment there was discussed between Dick Pearce and Stiers? A. Yes, sir.
"Q. Relate that conversation. A. Well . . .
"Q. First, as I understood you, you say you came out there the middle of June? A. The first of June.
"Q. Can you fix the time, as near as you can with reference to the day of this fight, as to when this first conversation took place wherein the discussion of Broyles' employment was had between Dick Pearce and Mr. Stiers? A. I would say it was somewhere around the first of August. I can't give you the exact date, but I say somewhere around near the first of August. George kept on telling Dick he wasn't getting enough work, that he wasn't making enough to support his family or to justify him staying there, and Dick took up the question with Mr. Stiers, and Mr. Stiers said in one of the later conversations that he could put George on a car basis. He would pay him so much a car and he could do all the work he wanted to in one day or three days, and if he had enough work he could work all week and that he would make more money. Then they talked about putting George on a Moniter line up in Illinois in a coal field. That, I don't think, ever materialized. I don't think he ever got to go over there. Mr. Stiers said he thought that would be a good way to get George off the job.
"Q. Were you present at any conversation between Dick Pearce and Louis Stiers when the question of George Broyles' employment and getting rid of him out there was discussed? A. Yes, I heard it.
"Q. Can you fix the time as to the next conversation? A. I couldn't say the exact date; no, sir.
"Q. Just tell us approximately. A. It was approximately a week before George left.
"Q. Tell us now what took place. A. They were talking about the way George was carrying on, always hollering about not having enough work to do. Mr. Stiers said if he could put him on the Moniter over in Illinois and get another Hoister in his place it would be a good way to get rid of him. That was about a week before George gave notice he was leaving. . . .
"Q. I can't lead you into telling any conversation; I want you to fix a time with reference to any conversation you heard that involved the question of George Broyles and his work out there; fix the time first and then tell what took place. A. Well, on several occasions he talked to me. I believe it was the second Saturday night. I'm sure it was the second Saturday night before he left he come to me and wanted me to leave the place and go with him *Page 834 on the farm. He said we would make more money on the farm. He said he should have the job there as superintendent of the plant, but he got a dirty deal, and he wanted me to go on the farm and go into the fish business with him. That was the second Saturday night before he left. I remember that because we all stayed at the house together. . . .
"Q. Did you or did you not hear a conversation between Dick Pearce and Stiers along about the first of September when there was some discussion about Broyles, and Stiers said he was afraid George would blow up the plant? A. Well, on one occasion that George was kicking so hard about the wages and at the time Mr. Stiers was there —
"Mr. Fairfield: Fix a time.
"The Witness: That was about two weeks before George left.
"Mr. Fairfield: Was that on the same occasion that Mr. Broyles had asked you to go fishing with him?
"The Witness: That was on a Sunday after he had asked me to go in the fish business with him on a farm.
"Mr. Friedewald:
"Q. Go ahead. A. Dick spoke to Lou about getting rid of him.
"Mr. Fairfield: Are you through?
"The Witness: Yes, sir; I think so.
"Mr. Fairfield (Q.): Who was the conversation between?
"The Witness: Mr. Pearce and Mr. Stiers.
"Mr. Fairfield (Q.): Where?
"The Witness: Out in front of the office.
"Mr. Fairfield (Q.): On a Sunday?
"The Witness: Yes, sir.
"Mr. Fairfield (Q.): What time on Sunday?
"The Witness: I would say about 9 or 10 o'clock in the morning.
"Mr. Friedewald:
"Q. Go ahead. A. Mr. Stiers said that they would have to work him out of there easy. He said he was afraid to anger the man because you couldn't tell what he would do. Dick said, `Well, I don't think he will do anything.' And Mr. Stiers said, `You can't tell what he will do. He's as apt to blow up the place as anything.'
"Q. As I understand it, George Broyles left there around September the 17th? A. Yes, sir.
"Q. Do you remember what day of the week he left on? A. One Sunday morning.
"Q. He moved his stuff on a Sunday morning? A. Yes, sir.
"Q. Did he come — when was the next time he came back? A. He came back Monday morning.
"Q. And was there anything transpired between him and Dick Pearce at that time? A. No, not between him and Dick then, because Dick was not there at that time. *Page 835
"Q. Did you have any conversation with George at that time? A. Yes, sir.
"Q. What was that conversation then? A. Well, George came over and wanted to know where Dick was. I told him Dick hadn't come out yet, but he would be out about 10 o'clock as Dick had called me from town and said he woudn't get out until about 10. He had trouble with the car and didn't get there until 11 o'clock though; it was about 11:30, I guess, when he got there. George waited until about 11 o'clock before he left and it was right away after that that one of the men told me they were pulling Dick's car in. George told me while he was there Dick had caused him and his wife to separate and that there would be bloodshed over it. I talked to George and tried to reason with him and told him to let his wife go and he finally said that I was right and it would be better to just let her go. He said he wasn't going to do anything about it. I told Dick and he got ready to go back to town."
These excerpts effectually dispute the charge that the opinion contained anything in respect to the testimony which the record did not disclose and it is apparent that the charge that Broyles did not blame Pearce on account of working conditions is without foundation.
Since the opinion in the instant case was handed down on November 10, 1936, an opinion of our Supreme Court (not yet reported) was handed down on November 13, 1936, in case No. 34650, Sylvia v. O'Dell, Dependent, Respondent, v. Lost Trail, Inc., a Corporation, Employer, and New Amsterdam Casualty Company, a Corporation, Insurer, Appellants, in which the principle announced in the instant case was upheld.
In said O'Dell case, supra, the facts showed that a squatter killed an employee who had been directed by his employer to contact and make friends with the squatters located on a large area of wild, wooded lands in the Ozarks, which the employer desired to use in raising turkeys. The employee, with a companion, went to the home of a squatter early in the morning, with whiskey to pass around to create good fellowship, before the squatter's family had gotten out of bed.
He passed around the whiskey, which was partaken of by the squatter, who immediately arose from his bed, and the wife went to the kitchen and prepared breakfast. The employee made quite free with the two daughters of the squatter by putting the whiskey bottle in the bed between them and fondling and braiding the hair of one of them. The girls evidently resented this familiarity from a stranger and went into the kitchen. When breakfast was ready, the two visitors were invited in to breakfast but they refused stating that they had already had their breakfast.
The employee and the squatter engaged in a wordy argument as *Page 836 to which one was the better hunter or could kill the most game, with the result that each took a shot at the other and the squatter's shot killed the employee.
The widow of the employee was allowed compensation, which award was upheld in said opinion. The quarrel and the shooting could have been attributed to the act of the employee in arousing anger on the part of the squatter and his family because of the undue liberties which he had taken with the two daughters, in which event no compensation could be allowed for the very obvious reason that the employee had entered upon a personal adventure of his own in taking these liberties with the girls; or, it could have been ascribed to an abortive effort on the part of the employee to cultivate and make friends with the squatter. He had taken the whiskey along with the knowledge and sanction of his employer. The Compensation Commission believed that the anger and resentment which resulted in the killing arose out of and in the course of the employment, either from their refusal to eat breakfast with the squatter, or the argument between the squatter and the employee, in which each sought to convince the other that he was the better hunter and could bag more game, etc., and not out of the personal adventure of the employee with the girls, and made an award of compensation which was upheld by the Supreme Court in said opinion.
Likewise, in the instant case the killing of Pearce by Broyles could have been ascribed to Broyles' enemity towards Pearce because the latter had been given the foremanship over him and because of his complaint about Pearce's operation of the plant and his failure to give him sufficient repair work to enable him to support his family.
There is the testimony of witness Martin that in the fight about two weeks before the killing Broyles did mention two grievances he had against Pearce. One was the alleged insult to his wife and the other was about being beaten out of the foremanship and that had not that been done he (Broyles) would still have been at the plant on his job.
It further appeared from the testimony of Pearce's widow that the superintendent of the Gravel Company had directed Pearce to handle the matter of Broyles' complaints instead of doing so himself for the reason that he feared that Broyles might cut the cables or set fire to the plant.
The Workmen's Compensation Commission believed the testimony to the effect that the killing grew out of the enemity in respect to the foremanship and the matters relating to the employment and we are satisfied, as was the Circuit Court, that there is sufficient, competent testimony in the record to support such a finding of fact, hence it is our duty to uphold the award. The motion for a rehearing is, accordingly, overruled. Becker andMcCullen, JJ., concur. *Page 837