Davis v. Roadway Express, Inc.

764 S.W.2d 145, 1989 Mo. App. LEXIS 78, 1989 WL 3593
CourtMissouri Court of Appeals
DecidedJanuary 20, 1989
DocketNo. 15870
StatusPublished
Cited by5 cases

This text of 764 S.W.2d 145 (Davis v. Roadway Express, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Roadway Express, Inc., 764 S.W.2d 145, 1989 Mo. App. LEXIS 78, 1989 WL 3593 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

Roadway Express, Inc. (“Roadway”) appeals from a final award allowing compensation by the Labor and Industrial Relations Commission (“Commission”). The sole issue is whether the death benefits due the dependents of a deceased employee of Roadway under The Workers’ Compensation Law, chapter 287, RSMo 1978, as amended, should have been reduced by 15 per cent pursuant to § 287.120.5, RSMo 1978, which provides:

“Where the injury is caused by the willful failure of the employee to use safety devices where provided by the employer, or from the employee’s failure to obey any reasonable rule adopted by the employer for the safety of employees, which rule has been kept posted in a conspicuous place on the employer’s premises, the compensation and death benefit provided for herein shall be reduced fifteen percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a diligent effort to cause his employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.”

[147]*147The Commission, affirming (by a two-to-one vote) an award by an Administrative Law Judge (“AU”) of the Division of Workers’ Compensation, rejected Roadway’s plea for reduction.

We review the Commission’s award, not that of the AU. Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597[1] (Mo. App.1987); Long v. City of Hannibal, 670 S.W.2d 567, 569 — 70[5] (Mo.App.1984). Our review is governed by § 287.495, RSMo 1986, which provides:

“1. ... 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 be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, 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.
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The claim arose from the death of Joe Curtis Davis (“decedent”). He was operating a Roadway tractor-trailer unit on an interstate highway around 1:55 a.m., December 29, 1985, when the rig left the highway, breached a guardrail, slid down an embankment and turned over on its passenger side. Investigating officers, arriving some 50 minutes later, found decedent positioned with his legs inside the cab and his upper body outside the open passenger door, pinned to the ground beneath the door and cab. He was dead. The cab was equipped with a seat belt.

The Commission found that the rig left the highway when decedent apparently fell asleep at the steering wheel. The Commission further found that the testimony of the investigating officers and the county medical examiner who performed an autopsy on decedent established that decedent was not wearing the seat belt at the time of the accident.

The AU, whose findings were affirmed by the Commission, found that Roadway’s evidence demonstrated that Roadway had conducted extensive training of its drivers where the use of seat belts was emphasized on numerous occasions, with a videotape on seat belts being shown to decedent only 17 days prior to the accident. Several months before the accident Roadway had adopted a company policy requiring all drivers to wear seat belts while driving Roadway equipment. The AU found that Roadway met its burden of proof that decedent had actual knowledge of the seat belt rule. The AU further pronounced Roadway’s evidence sufficient to show it made a diligent effort to cause seat belts to be used.

The AU refused, however, to reduce the benefits by 15 per cent under § 287.120.5 because, according to the AU, Roadway failed to meet its burden of proving that decedent “willfully” failed to use the seat belt. The AU ruled:

“In this case, there was no evidence presented which showed the [decedent] either deliberately or by design did not wear a seat belt or consciously refused to wear a seat belt. On the other hand, there was evidence the [decedent] was driving the truck late at night, was fatigued, had a headache shortly before the accident, and did not have the benefit of a warning buzzer or sign in the truck to remind him to use the seat belt. I believe the more likely cause of the [decedent’s] failure to wear the seat belt was inadvertance [sic] or negligence. Therefore, I find and believe after reviewing all the credible evidence that the employer failed to prove the [decedent] ‘willfully’ neglected to use the seat belt....”

Urging the Commission to reduce the AU’s award by 15 per cent, Roadway maintained the AU’s determination that Roadway failed to meet its burden of showing that decedent’s nonuse of the seat belt was willful was not supported by competent and substantial evidence and was against the greater weight of the evidence.

[148]*148The Commission rejected that contention, stating: “We agree with the [ALJ] that there is insufficient evidence in the record to demonstrate a ‘willful failure’ on the part of the decedent to use a safety belt.”

Roadway presented an alternative argument for reduction to the Commission, asserting that decedent’s death was caused by his failure to obey a reasonable rule adopted by Roadway for the safety of its employees, i.e., that its drivers were to wear seat belts while driving Roadway equipment. The Commission noted that § 287.120.5 provides for reduction when the injury “resulted either from the employee’s willful failure to use a safety device or from his failure to obey any reasonable rule adopted by the employer for the safety of its employees.” It is evident the Commission assumed that where the injury was caused by the employee’s failure to obey a safety rule adopted by the employer — as contrasted against the employee’s failure to use a safety device provided by the employer — the employer was not required to show that the employee’s violation of the safety rule was willful in order to be entitled to the 15 per cent reduction in benefits. The Commission ruled, however:

“As noted in Trióla et al. v. Western Union Telegraph Co. [224 Mo.App.258], 25 S.W.2d 518 (Mo.App.19S0), the provision regarding ‘any reasonable rule’ pertains to violations of rules while on the employer’s premises. This provision does not contemplate violations of safety rules which might result in an accident on the highways. Although the Workers’ Compensation Act has [been] subject to numerous revisements [sic] since Trio-la, this provision remains virtually unchanged and the Commission finds no subsequent treatment of this provision by the courts which addresses this precise point. Therefore, the Commission finds no merit in the employer’s alternative contention raised here.”

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Cite This Page — Counsel Stack

Bluebook (online)
764 S.W.2d 145, 1989 Mo. App. LEXIS 78, 1989 WL 3593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-roadway-express-inc-moctapp-1989.