Opinion
No. 27796.
February 21, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied March 24, 1950.
APPEAL FROM THE CIRCUIT COURT, MADISON COUNTY, NORWIN, D. HOUSER, J.
Moser, Marsalek, Carpenter, Cleary Carter, G. W. Marsalek, St. Louis, for appellants.
Robert Meagher, Fredericktown, Albert I. Graff, Malcolm I. Frank, St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of Madison County, Missouri, affirming the final award of the Workmen's Compensation Division of the Industrial Commission awarding workmen's compensation in the sum of $900, and medical reimbursement in the sum of $67.
Claimant alleged in his claim for compensation that he had lost his left index finger and part of the left ring finger, and had suffered an injury to his left hand. By stipulation of all parties, it was agreed that if compensation were awarded, the injury to the hand would be rated at 45 weeks of compensation at $20 per week, and that medical services incurred by the employee as a result of the injury amounted to $67.
The claim further alleged that claimant was on his employer's premises and was making preparations with intent to leave in approximately five minutes, at the end of his working day; that he attempted to start his automobile and that his hand became caught in the motor fan. The employer and insurer generally denied the allegations of the claim.
Claimant testified that he lived four miles from Fredericktown, Missouri, and as of the date of hearing, had been employed by St. Louis Smelting Refining Co. about four years, hauling rock in the mine. The mine at which claimant's injury occurred is about two miles south of Fredericktown, and about six miles from claimant's home. There is no public transportation service from claimant's home to the mine, or from his home to Fredericktown, or from Fredericktown to the mine. At the time of his injury, claimant was working the day shift, 7:30 a. m. to 3:30 p. m. He used his Model A Ford automobile to get to and from work. On prior occasions he had taken others to work also, but had no passengers at the time referred to in the claim. He took those others because they had no other transportation.
There is a parking lot on the company's property, about 200 feet from the "change-room and shaft." The lot is on a slope, an acre or acre and a half in size, and the company keeps it maintained and graveled, and has lights on it. They have a watchman there at times, and have signs posted with respect to the distance parkers are required to stay away from buildings.
At the time claimant was hired, he was not required as a condition of employment to have a car to get back and forth. The claimant's testimony was to the effect that the company asks if you have transportation, not if you own a car, and that you can use your own automobile or ride with someone else if you want to, or you can ride a bicycle or ride a mule if you want to; that they don't care how you get there so long as you are there when the shift starts.
Mr. Floyd Rehkop, Jr., claimant's witness, corroborated claimant's testimony as to the location and maintenance of the parking lot. Mr. Rehkop gets to the mine by riding with another employee. Most employees have automobiles, others ride with those who have. The parking lot is approximately one mile inside the gates to the company property.
On the occasion in question, claimant as was usual came up from his work underground about 3:15 p. m. He washed and changed clothes, and got to his car about 3:25. After he washed up, there was nothing more to do, and he was at liberty to go out to his car, although he wasn't supposed to go home until 3:30. He started his car; the battery didn't work because it was a cold day. He raised the hood and saw that the fan was stuck; he gave it a whirl with his hand and the fan started and caught his fingers. This happened just before 3:30, on the parking lot on company property.
The referee made an award on hearing denying compensation, on the stated basis that the accident did not arise out of the employment. On review, the industrial commission reversed the referee, awarded compensation and specifically found that the accident arose out of and in the course of the employment. On appeal, the circuit court affirmed the final award of the industrial commission awarding compensation.
It is appellants' contention that there is no evidence whatsoever to support the final award and judgment, in that the undisputed facts demonstrate that the injury did not arise out of the employment, and therefore is not compensable.
The compensation law, Section 3691, R.S. 1939, Mo. R.S.A. § 3691, provides that "the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment," etc. The converse of this provision is that the employer shall not be liable unless the accident arises out of and in the course of the employment. It has been repeatedly held, as this court said in the case of Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244, 246, "There are many attempted definitions in the various cases of the meaning of the words `arising out of and in the course of his employment,' but there is not, and in the very nature of things cannot be, any set formula that applies in all cases, and therefore every case involving the application of that requirement must be decided upon its own particular facts and circumstances and not by reference to some formula."
This employer was engaged in mining and processing lead ore at a place two miles away from the nearest town or city, — Fredericktown. Its employees lived in Fredericktown or in the surrounding territory, some further away from the mine than others. This particular employee lived six miles from the employer's premises. It was incumbent on all of the employees to provide a means of transportation to and from the employer's premises. Most of them came to said premises, and after the day's work returned to their homes, by use of their own automobiles, although some of them who did not have an automobile rode with others who did. In recognition of these conditions the employer furnished and maintained a parking lot on its own property and adjoining or near to its smelter house for the use of its employees.
This employee had an accidental injury received by him during the hours of his employment, on the employer's premises, at a place he would be expected to be and which the employer had provided for his use.
It was not only beneficial to this employee to have a place to stop and park and start his automobile near to his work, but it was beneficial to this employer in that its employees had a means of arriving on time, and a means of returning home after the day's work was done. As said in the case of Metting v. Lehr Const. Co., 225 Mo.App. 1152, 32 S.W.2d 121, 124, "Ordinarily the act of leaving the premises by an employee, after his day's work is done, is as much `in the course of' his employment as engaging in the actual work which he is employed to do." And as said by this court in the case of Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 500, "consequently an accident such as the one we have before us should be regarded as compensable, because it occurs within the period of the employment, at a place where the employee has a right to be, and while he is engaged in something incidental to his employment proper, because contemplated by it." In that case the employer furnished the means of transportation, but the above statement is equally applicable to the facts in this case, because this employee's accident was within the period of his employment, at a place where he had a right to be, and while he was engaged in something incidental to his employment proper, because contemplated by it.
The compensation law, Section 3693, paragraph Third, provides that "Employments which are but casual or not incidental to the operation of the usual business of the employer," are not compensable. But in this case the coming to his work and stopping and starting his automobile at a place contemplated by the employer and provided by it, were incidental to his work in the mine.
The compensation law, and the words "arising out of and in the course of his employment," have never been so narrowly construed as to require that the employee be engaged in the particular and specific work he was hired to do, but the test is whether the injury occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Many cases so hold, some of which are: Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 129; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530; Jackson v. Euclid-Pine Inv. Co., 223 Mo.App. 805, 22 S.W.2d 849. In the Jackson case this court, citing the case of Smith v. Levis-Zukoski Mercantile Co., 223 Mo.App. 743, 14 S.W.2d 470, said, 22 S.W.2d loc.cit. 851, "In the Smith Case, supra, we said that an injury arises `out of' the employment when it is reasonably apparent, upon a consideration of all the facts and circumstances, that there was a causal connection between the conditions under which the employee's work was required to be done and the resulting injury; that the injury must be a natural and reasonable incident of the employment, though not foreseen or anticipated; and that it must be a rational consequence of some hazard connected therewith."
In the case of Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454, the employee was injured while operating a buffing machine to polish a metal piece from a toy belonging to the employee's daughter; an act entirely for his own use, but such was permitted if not encouraged by the employer as improving the quality of the work of employees. The injury was held to be compensable, and the Supreme Court en Banc said, 190 S.W.2d loc.cit. 919, "An injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable, for when some advantage to the employer results from the employee's conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Accordingly an injury resulting from such an act arises out of and in the course of the employment; and this rule is applicable even though the advantage to the employer is slight."
An accident which is not incidental to the employment and is entirely disconnected therewith is not compensable. Such was the case of Smith v. Levis-Zukoski Mercantile Co., supra, where the employee fell down an elevator shaft and was killed. The employee had no duties to perform about the elevator and consequently was not at a place he would reasonably be expected to be, and not performing any duty which was either a part of his work or incidental thereto, hence compensation was denied. In the case of Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, a plumber while walking through a hallway leading to a driveway, carrying plumbing tools to an automobile, was assaulted by an unknown person for apparently no reason whatsoever. Compensation was denied. The injury was wholly disconnected with and was not incidental to his work as a plumber for the employer.
On the other hand in the case of Garrison v. U.S. Cartridge Co., Mo.App., 197 S.W.2d 675, the employee had, as in this case, completed her daily work, and was leaving the premises for the day. In descending a stairway with other employees she was pushed or shoved and fell down the stairway. Held that while it is the general rule that an injury sustained by an employee while going to or from his work is not compensable, there is an exception where the accident occurs after the employee has come upon the employer's premises or at a place so close to the premises as to be a part thereof, or, where it occurs before the employee leaves the premises or place at the conclusion of his work. In the case of Murphy v. Wells-Lamont-Smith Corporation, Mo.App., 155 S.W.2d 284, the employee was going to work and had reached a driveway over a public sidewalk into the employer's shipping yard, when she heard someone shout and turning PAGE saw a truck backing toward her; she stepped into the shipping yard, and was struck by the truck and injured. Held compensable. This court said, 155 S.W.2d loc.cit. 287: "The use of some mode of ingress and egress to and from her place of work was incidental to her work. It was reasonably necessary for her to use that sidewalk to get to the women's entrance to enter the factory only a short distance away and immediately adjacent to the sidewalk. She was not there for her own pleasure nor upon any independent business of her own, as were members of the general public, if any, who may have been there at that time, but was there actually on the employer's premises as a necessary prelude to engaging in the work she was employed to do. She occupied a status different from the members of the general public. She was there in pursuance of her contract of employment — there to go to her work for the employer, whereas the members of the general public cannot be said to have had any such relationship to the employer or to have been under any such duty."
An incident is a thing which, either usually or naturally and inseparably depends upon, appertains to, or follows another that is more worthy. 1 Bouvier's Law Dictionary, Rawle's Third Revision, page 1517. This employee's work required him to travel six miles to and from the place of his work. The employer recognizing such fact provided and maintained a place on its property for the employee to stop, park, and after work to start his automobile and return to his home. This was for the mutual benefit of the employee and the employer. It was incidental to the particular work the employee was hired to do. It was so recognized by the employer permitting the employees to leave the mine fifteen minutes before quitting time in order that they prepare to leave the premises at quitting time for their homes. The injury was compensable.
Judgment affirmed.
ANDERSON, P. J., dissents.
McCULLEN, J., concurs.
Appellants' Motion for Rehearing or to Transfer Cause to Supreme Court
In their motion for rehearing or to transfer cause to Supreme Court, appellants have changed their theory of what the evidence showed at the hearing. The statement of facts as contained in our opinion is copied with slight changes from appellants' brief in which it is said that the claim alleged "that he attempted to start his automobile and that his hand became caught in the motor fan." In the suggestions in support of the motion for rehearing or transfer is the statement that Finley was engaged in "repairing his own automobile, nothing more." And the further statement that, "There is no showing, as there was in the Wamhoff case, supra, that the employer encouraged garage work on the premises to make claimant a better lead miner." And the further statement, "The only cause of the employee's injury was the fact that his car broke down." And the further statement, "We feel that the activity of repairing a private automobile on company time is not properly to be regarded as incidental to the work of lead mining, nor does any causal relationship exist."
If these statements were supported by the testimony it would have an important bearing on the question of whether the accident occurred in the course of claimant's employment. But we find not a word of testimony that this employee was repairing his automobile, or that it was in need of repairing; nor that he was engaged in garage work; nor that his car broke down; nor that he was repairing a private automobile on company time.
To the contrary, the uncontradicted testimony was that the accident occurred on a cold day, to wit, January 16, 1948, and claimant said, "I started her up, the battery didn't work, it was plenty cold that day. I raised the hood and the fan was stuck; I gave it a whirl with my hand and she caught it and cut this finger off."
Therefore, claimant was not engaged in the unusual thing of repairing a broken down car. He was engaged in the usual, ordinary and necessary thing of starting his automobile on a cold day in preparation to leave the employer's premises.
The motion for rehearing or to transfer to Supreme Court is overruled.
ANDERSON, P. J., dissents.
McCULLEN, J., concurs.