Opinion
No. 6884.
May 26, 1950.
APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY, LOUIS H. SCHULT, J.
R. F. Baynes, New Madrid, for appellants.
Edward F. Sharp, New Madrid, for respondent.
This is an appeal from the judgment of the Circuit Court of New Madrid County, Missouri, rendered on the second day of May, 1949, reversing an award of the Missouri Workmen's Compensation Commission, denying claimant compensation.
January 30th, 1945, claimant filed report of accident with the Division of Workmen's Compensation of the Industrial Commission of Missouri and thereafter a claim for compensation against John L. Girvin, d/b/a Farmers District Gin, and Maryland Casualty Company, insurer, for injuries sustained in a fall January 28th, 1945, in Portageville, New Madrid County, Missouri.
Defendants-appellants filed answer denying liability, alleging that if claimant was injured, the injury was a result of an accident which did not arise out of and in the course of his employment.
The cause was tried before a referee March 6th, 1947, resulting in an award in favor of claimant on the 6th day of October, 1947, in the sum of $630.60.
Appellants filed application for review by the full Commission on October 11th, 1947, and final award was made by the full Commission on the 6th day of February, 1948, reversing the award of October 6th, 1947, and finding that the employee's accident of January 28th, 1945, did not arise out of and in the course of his employment.
Claimant appealed to the Circuit Court of New Madrid County, where, on the 2nd day of May, 1949, the cause was submitted to said court and reversed, the court holding that the award was not supported by substantial evidence and was clearly contrary to and against the overwhelming weight of the evidence. Defendants-appellants appealed from said judgment to this court.
The sole question to be decided in this case is whether or not the accident of January 28th, 1945, in which claimant was injured, arose out of and in the course of his employment with John L. Girvin, d/b/a Farmers District Gin, as alleged.
The material facts in this case are undisputed. There is no contention that claimant was not injured; there is no objection to the findings of the referee as to the amount of damage sustained. The only question is whether or not the injuries are compensable under the Workmen's Compensation Act, Mo.R.S.A. § 3689 et seq.
John L. Girvin was the owner of, and operated, the Farmers District Gin Company in the City of Portageville, which was built in about 1938. The claimant was an employee of said John L. Girvin and had been since the gin was built. His duties were that of general manager and operator of the gin. He had the responsibility of taking care and looking after it day and night and on Sundays. He had full charge of the repairs and management of the gin.
The evidence in this case shows that the gin had been operating on Saturday and had run rather late that night and, when it closed down, all employees, including claimant, left. Sunday the weather began to turn cold, it snowed and sleeted and late in the evening it became evident that the weather was going to turn very cold. So, in pursuance of his duty and responsibility as manager and foreman of the gin, claimant, about three o'clock Sunday afternoon, made a special trip down to the gin for the purpose of draining the pipes and engine to prevent them from freezing. It was about night when he finished his work at the gin and left the premises to start home.
Claimant gave the following testimony:
"Q. Sam, you say that on the date of this alleged accident you had finished your work at the gin and had started home, is that right? A. Yes, sir.
"Q. And that you made one stop — where did you stop? A. I stopped at Hollman's Cafe. * * *
"Q. And how long did you remain there? A. I don't know — long enough to get warm.
"Q. Now, this Hollman's Cafe was between the gin and the place where you fell? A. Yes.
"Q. In leaving the gin you had gone your regular route towards your home and stopped at Hollman's Cafe, is that right? A. Yes, and I drank a couple of bottles of 3-2 beer.
"Q. Then, after you left Hollman's — you stayed there long enough to get warm and drink those couple of bottles of beer — then you went on towards your home? A. Yes, sir.
"Q. Is that the route you usually take, Sam? A. Yes — usually I come up the railroad from the gin.
"Q. In going to and from your home nobody told you what route you should take? A. No, nobody did.
"Q. Nobody designated any direct route? A. No, sir.
"Q. Or told you what street you should follow — you choose your own method of going to and from home? A. Yes, sir.
"Q. The company — that is to say, the District Gin, John Girvin, didn't furnish you any conveyance? A. No, sir. * * *
"Q. That was a matter solely of your own discretion as to what manner you should go to and from your work? A. Yes, sir.
"Q. And the route you should take was entirely up to you? A. That is right. * * *
"Q. And how many blocks do you live from the gin? A. Well, from first street to 7th.
"Q. It would be about 7 blocks north then wouldn't it, from the gin? A. Yes, sir.
"Q. And how many blocks west? It would be three blocks west.
"Q. You are about ten blocks from the gin — your home is? A. Yes, sir.
"Q. And you were within four or five blocks of your home when you fell? A. No, I was between 4th and 5th street, and I live — that would be about three blocks.
"Q. Now, what was the condition of the weather at that time? A. It was cold.
"Q. Well, was it snowing — was it sleeting? A. Snowing — it had been snowing and melting and it went to freezing.
"Q. Was there ice on the sidewalk where you were walking? A. Yes, sir.
"Q. And was there ice on the street? A. Yes, sir.
"Q. Do you know what caused you to fall, Sam? A. Well Dick, it was just like this — I was walking and there was a kind of a little bump of snow on the walk and people had been stepping on it, and I come and stepped on that and my foot slipped from under me and I fell, I had this hand in my pocket. . . . * * *.
"Q. Now, Sam, this route you were traveling from the gin to your home, is that a regularly traveled route? A. Yes, sir.
"Q. Many people use it? A. Yes, sir.
"Q. It is a regular city thoroughfare? A. Yes, sir, about a half block to the church.
"Q. Was there a paved sidewalk? A. Concrete walk.
"Q. And is the street paved? A. Blacktop.
"Q. In fact, it is one of the principal residential streets in the town, isn't it? A. Yes, sir."
It is admitted that when claimant fell he broke his leg and suffered injury complained of.
Under points and authorities, in their brief, appellants complain, "The court erred in its decision in reversing the decision of the Industrial Commission in this cause, which denied an award to respondent, but held that the injury received by respondent was not such an accident as grew out of and in the course of his employment."
To support this assignment of error, appellants cite Tucker v. Daniel Hamm Drayage Co., Mo.App., 171 S.W.2d 781, 784.
In this case the Workmen's Compensation Commission denied employee compensation for accidental injury sustained when he was struck by a locomotive at Main and Biddle Streets in the City of St. Louis, while on his way to work.
The findings of the Commission were that the injury complained of was not the result of an accident arising out of and in the course of his employment. The evidence in this case shows that claimant was employed as a rigger and his duties consisted of unloading and setting machinery of all kinds and sizes; that he did not work at any particular place but would report to employer's garage each morning to find out where he was to work; that, at the time of the injury, the employer was engaged in unloading a ten ton diesel engine into the basement of a building for Booth Storage Company in St. Louis. The building was bounded on the north by Ashley Street, south by Biddle Street, east by Levee Street and west by Main. The accident occurred on railroad tracks at Main and Biddle Streets. Two days before the injury claimant reported to employer's garage and was transported to work by employer's foreman in an automobile. They drove east on Ashley Street to Main Street, crossed the railroad tracks, drove south on Main Street to side of Booth building and parked the automobile. Claimant and foreman entered the door on the south of the Booth Building and proceeded to where the work was being done. Claimant was ordered to report to the garage next morning and was transported in employee's truck to the spur track on the east side of the Booth Building at Levee Street, near Ashley Street. Claimant was then instructed, by his foreman, to report the next morning direct to the Booth Cold Storage Company job. The next morning claimant rode a Wellston Street-car from his home to Fourth Street and Franklin Avenue, walked north to Biddle Street, east on Biddle Street toward the Booth Building to railroad tracks on Main Street. He testified he intended to cross railroad tracks and proceed north on Main Street and enter the southwest door of the Booth Building, where he had entered on Monday, two days before. While crossing the railroad tracks at Main and Biddle, he was struck by a locomotive and was injured. The accident occurred about fifteen minutes before claimant was to start to work in the Booth Building.
The testimony shows that claimant could have gone different routes to the place of employment but had to cross the railroad tracks no matter which way he went. The employee complained that the court erred in holding that the accident did not arise out of the course of his employment. Now, in this case, claimant made the following contentions. We quote:
"In a concluding summary the employee contends that his injuries arose out of and in the course of his employment and was therefore compensable, because he was (1) going directly to his work at the time he was injured; (2) he was going by the customary, most practicable and direct route; (3) he had no other choice than to cross the railroad tracks to get to his work; (4) the railroad tracks were adjacent to the plant where he was going to work; (5) the point at which he was injured was the nearest point at which he could cross the tracks to get to his work without trespassing; and (6) his employer knew that he must cross the tracks and contemplated his crossing as much as it did his working at the plant."
To support these contentions the claimant cited the holdings of the United States Supreme Court and the courts of Illinois and Connecticut that, under the Workmen's Compensation Act, employment is not limited to the exact moment when a workman reaches the place where he begins his work, or to the moment when he ceases his work, but includes a reasonable amount of time and space before and after ceasing actual work, having in mind all the circumstances connected with the accident.
The court made the following statement:
"However, if we give full effect to all of the rule or doctrine relied on by appellant, including the part quoted above, by `having in mind all the circumstances connected with the accident,' we cannot escape the conclusion that there was ample substantial evidence in the case at bar from which the Commission could properly find that the accident did not arise out of and in the course of appellant's employment, as required by Section 3691, R.S.Mo. 1939, Mo.R.S.A. § 3691, to make it compensable.
"The general rule applicable in determining the compensability of injuries to employees resulting from accidents while going to and from their work is well settled by practically all the authorities. In 71 C.J. Section 443, page 712, the rule is stated: `Subject to certain exceptions hereinafter discussed, it is laid down as a general rule that harm sustained by an employee while going to or from his work is not compensable.'
"* * * The same authority further says: `* * * no compensation may be awarded for injuries sustained while going to or from work where the injuries occur away from the employer's premises and at places not subject to his control. Thus injury from an accident in the street or on a highway while on the way to or from work is not ordinarily compensable. * * *' 71 C.J. Section 445, pages 716, 717, 718 and 719.
"In 28 A.L.R. 1409, it is said: `The courts, however, have generally recognized that an injury which occurs while an employee is on his way to or from work, and away from the employer's plant, does not arise out of and in the course of the employment.'
"In Schneider, Workmen's Compensation Law, 2d Ed., Vol. 1, Section 272, page 824, the rule is stated thus: `The general rule, supported by the weight of authority, is that when employees are injured on the street, from causes to which all other persons using the street are likewise exposed, the injury cannot be said to arise out of the employment.'"
We again quote from the opinion cited, 171 S.W.2d l oc. cit. 785:
"In the case at bar appellant sustained his injury at the intersection of Main and Biddle Streets on railroad tracks in no way connected with the Booth building where the employer's work was being done. Both streets were open public streets used by the general public. No part of either of the streets or of any of the railroad tracks was in the slightest degree under the control of the employer, or of the Booth Cold Storage Company in whose building appellant's work was required to be done. There is no evidence whatsoever to show that appellant was required, directed or requested to walk north on Main Street from Biddle Street in the block where the Booth building was located, or to use any particular route to go to his work. * * *
"If appellant had been injured by a locomotive on the spur track leading from Levee Street into the Booth building, such injury would be within the doctrine of the cases relied on by him and would be compensable, but the evidence is undisputed that he sustained his injury in the intersection of two public streets in no manner connected with the Booth building wherein he was required to do his work, and one block south and one block west of the actual site of his work. * * *
"* * * He had a choice of several routes to reach the place of his work. He was not on the job in the Booth building a sufficient length of time to establish any `custom' in going to and from his work. He was free to choose his own route in going to and into the building."
The court held in this case that there was no evidence to show a peculiar or abnormal risk because claimant had to cross the railroad tracks to get to work; that the risks here were no different from that assumed by any other member of the public and cannot reasonably be said to be more hazardous by reason of his employment.
On page 786 of 171 S.W.2d, of the opinion, the court makes the following statement:
"The Legislature might at some future time adopt a statute to the effect that employees sustaining accidental injuries while on their way to and from work are entitled to compensation, but we have no such statute at this time. On the contrary, the applicable statute plainly provides that the employer shall only be liable to furnish compensation for personal injury or death of the employee by accident `arising out of and in the course of his employment.' Section 3691, R.S.Mo. 1939, Mo. R.S.A. § 3691. It is the established law of this state that an injury to a workman to be compensable must be shown to have arisen both `out of' and `in the course of' the employment. Stone v. Blackmer Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 459."
We quote again from this opinion, 171 S.W.2d loc. cit. 787:
"It is true, as appellant points out, the Workmen's Compensation Law in Section 3764, R.S.Mo. 1939, Mo.R.S.A. § 3764, requires that all provisions of said law shall be liberally construed with a view to the public welfare, but, as has been well said, `that does not authorize the allowance of a claim that lacks some of the essential elements required by the act.' * * *"
Murphy v. Wells-Lamont-Smith Corp., Mo.App., 155 S.W.2d 284, 286, is cited by appellants. This opinion holds that the Workmen's Compensation Law should be liberally construed as to the person to be benefited, and doubts regarding the rights of compensation should be resolved in favor of the employee. Here, employee was working for a glove factory, employer, and had been for ten years. The building was a large, three-story ell-shaped structure, fronting on Lincoln Street; within the ell was a shipping yard where trucks drove in to load freight. Along Lincoln Street, adjacent to employer's premises, was a concrete sidewalk, used almost exclusively by factory employees to go to and from their work, but, also, used occasionally by the public. Mid-way of employer's premises the public sidewalk had a reinforced section used by employer to enter its shipping yard. Employee, who lived some five blocks from the factory, in going to her work, used the usual course, reached the sidewalk, in front of factory, intending to go to the woman's entrance, until she reached the point of the reinforced portion of said walk, used by the employer to enter his premises as a driveway across the sidewalk. She heard a shout that a truck was backing toward her. She stepped about two feet north of the sidewalk into the shipping yard, was struck by the truck, knocked down in the shipping yard and injured. It is undisputed here that the employee was run over on the premises of employer. The truck was owned by an independent driver, who occasionally hauled loads for the employer. The operator of the truck was backing into the loading yard to solicit freight from employer. This case holds that every case must be determined upon its particular facts under the law. The court states the following law:
"Section 3305(c), R.S.Mo. 1929, Mo.St. Ann. § 3305(c), p. 8238, now Section 3695 (c), R.S.Mo. 1939 [Mo.R.S.A. § 3695(c)], provides as follows: `Without otherwise affecting either the meaning or interpretation of the abridged clause, "personal injuries arising out of and in the course of such employment," it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such service.' * * *.
"It is undisputed that the employee's injuries were sustained upon the employer's premises. The employee immediately prior to her injury was walking along the most direct and practicable route to get to her work. It is true she was on a public sidewalk when she first saw the truck threatening her, but the sidewalk in question was something more than a public sidewalk in so far as the employer was concerned. The employer had, for its own purposes and for its own benefit, taken advantage of its occupancy and control of the premises immediately abutting the sidewalk and was using a part of it as a driveway to and from its shipping yard, thereby creating a greater hazard to those using the sidewalk than would have been the case had not the employer so used that portion of the sidewalk. The employer had thereby made that part of the sidewalk a part of its own premises for its own use and benefit, thus taking this case out of the class of cases cited by the employer and insurer where injuries were sustained on public sidewalks and public streets not in any manner used for such private purposes as was the sidewalk involved herein. The truck which struck the employee was at the time backing into the shipping yard across the sidewalk to do business with the employer. * * *"
The court held that when the employee reached that part of the sidewalk for a drive-in and drive-out by the employer for its own benefit, she was there by the virtue of her employment; that some mode of ingress and egress to and from her place of work was incidental to her work; that it was necessary for her to use this sidewalk to go to the place of entry into employer's building. The court made the following statement: "* * * 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."
The court, in commenting upon a decision of the Supreme Court of the United States, Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532, made this statement of the law: "`It is enough if there be a causal connection between the injury and the business in which he employs the latter — a connection substantially contributory though it need not be the sole or proximate cause.* * *'"
The court stated the law, 155 S.W.2d loc. cit. 288: "`* * * And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer's premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. * * *'"
In this case the court reviews Bise v. Tarlton, Mo.App., 35 S.W.2d 993, where the employee was injured in a public street by automobile driven by a third party who was in no manner connected with the employer and stated that the evidence showed the accident did not occur at any place where the employee's services required him to be and he was not at any time performing any of the duties of his employment, therefore, no liability.
The court holds in the opinion, 155 S.W.2d loc. cit. 289, that the employer is liable here:
"`As an exception to the general rule that injuries sustained by an employee while going to or from work are not ordinarily compensable, injuries which occur to an employee while going to or from his work and after he has come upon the employer's premises or at a place so close thereto as to be considered a part thereof, or before leaving such premises or place, as the case may be, are held to be compensable.'
"If the sidewalk in question herein had been the usual ordinary smooth, open public sidewalk which had not been interfered with by the employer, no part of which was used as a driveway for the employer's own private purposes, the general rule and the cases cited by the employer and insurer herein would be more nearly in point in determining the question before us; but, under the facts in this case, which it is conceded are in the main undisputed, we are of the opinion that the employee's injuries arose out of and in the course of her employment within the meaning of our Workmen's Compensation Law."
Mershon v. Missouri Public Service Corporation, Mo.Sup., 221 S.W.2d 165, 167, cited by appellants, holds that the burden of proof, under the Workmen's Compensation Act, is upon the employee to show that the injury resulted from an accident arising out of the course of the employment.
This case also holds and we quote:
"On the first point we concede that the Compensation Act and proceedings under it should be liberally construed in favor of the employee. That is required by statute and by the decisions cited by claimant and many others. However, the rule of liberal construction does not authorize the allowance of a claim which lacks some of the essential elements required by the Act. Tucker v. Daniel Hamm Drayage Co., Mo.App., 171 S.W.2d 781."
The court, in this opinion, states the law, 221 S.W.2d loc. cit. 169:
"As a reviewing court it is our duty to sustain the findings of the referee, the Commission and the circuit court unless, upon the whole record, we can hold that such findings are not reasonably supported by competent and substantial evidence."
Under this declaration of law the court cites Williams v. Planters Realty Co., Mo.App., 160 S.W.2d 480; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Wood v. Wagner Electric Co., 355 Mo. 670, 197 S.W.2d 647.
In Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244, 246, the court makes the following statement of law:
"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. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; O'Neil v. Fred Evens Motor Sales Co., Mo.App., 160 S.W.2d 775. The requirement of Section 3764, R.S.Mo. 1939, Mo.R.S.A. § 3764, is that all provisions of the compensation law be liberally construed with a view to the public welfare, and both the Supreme Court and this court have said that the law should be liberally construed as to the persons to be benefited, and that doubt as to the right of compensation should be resolved in favor of the employee."
The court cites numerous authorities to sustain this holding and the court states:
"But it has also been said `that does not authorize the allowance of a claim that lacks some of the essential elements required by the act.' * * * The compensation law was never designed to operate as accident insurance with blanket coverage as to any and all accidental injuries wherever and whenever received by an employee; to the contrary, it applies only to accidental injuries arising out of and in the course of the employment. The relationship of master and servant must exist in any case to make it compensable, and when that relationship ceases to exist, whether temporarily or permanently, the liability of the employer for accidental injury to the employee ceases to exist."
We cannot agree with the learned trial court in the case at bar wherein he finds that the award of the Industrial Commission is not supported by any substantial evidence but is contrary to and against the overwhelming weight of the evidence.
We find that there is no set formula by which this court might determine the question of liability in this case. Each case must be decided upon its own facts.
It is our duty to sustain the findings of the referee and the commission unless, upon the whole record, we can hold that such findings are not reasonably supported by competent and substantial evidence. This rule was clearly enunciated in Mershon v. Missouri Public Service Corp., supra, 221 S.W.2d loc. cit. 169, and the many cases cited thereunder.
The facts in this case are undisputed that claimant-respondent lived about ten blocks from the place of his employment, in the City of Portageville. That, on the date of injury, he had left the place of his employment and was proceeding home on the public streets of Portageville and was injured by falling on a concrete sidewalk about a half a block from a church on one of the principal streets in the city. The sidewalk and place of injury was in no way connected with the premises of the employer and was much used by the public. Claimant states, himself, that while this was a usual way home from his work, it was not the only way he could have gone and that he was in no way directed by his employer to go by this route. Under claimant's own testimony, we find that there was substantial evidence to support the general rule followed by the courts of this state, that injuries sustained by an employee while going to and from his work are not compensable. Tucker v. Daniel Hamm Drayage, supra, and authorities cited therein.
Section 3691, R.S.Mo. 1939, Mo.R.S.A. § 3691, plainly provides that the employer shall only be liable to furnish compensation for personal injury or death of the employee by accident arising out of and in the course of his employment. Our courts have said that this provision should be liberally construed with a view to public welfare but the courts have well said that this does not authorize the allowance of a claim that lacks some of the essential elements required by the act.
In Stout v. Sterling Aluminum Products Co., supra, 213 S.W.2d loc. cit. 247, the court quotes, with approval, from the Supreme Court of Illinois, the following law:
"`The test relates to the time, conduct and place. And injury not fairly traceable to the employment as the contributing proximate cause does not arise out of the employment. * * * There must be some causal relation between the injury and the employment, and if the injury is sustained by reason of some cause having no relation to the employment, it does not arise out of the employment. It is not enough that the injured person may be present at the place of the accident because of his work, unless the injury is the result of some risk of the employment. Gooch v. Industrial Commission, 322 Ill. 586, 153 N.E. 624. The general rule is that the employment does not begin until the employe reaches the place where he is to work or the scene of his duties, and it does not continue after he has left.'"
In the case at bar, under claimant's own testimony, the employer had no control whatever over the conduct and actions of the employee after he left the place of employment. The employer did not designate or control the route employee traveled in going to or from home. Even though the employment had been over a number of years, the evidence does not show any custom established in traveling any particular way in going to and from work.
Respondent cites a number of authorities on which he relies to recover in this case. The first Missouri authority cited is Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. This case does not support respondent's contention. Here, a traveling salesman received injuries while changing a tire on a car furnished him by his employer to go from place to place in the performance of his duties under his employment. The court held that it was necessary as a part of his employment to change the tires, and therefore, the injuries were compensable. Here, the deceased was not employed to change tires but the changing was a task that was incident to the employment. We quote from the court, 328 Mo. 112, 40 S.W.2d loc. cit. 605:
"There can be no question but that the employee in this case at the time of the happening of the accident which caused his death was engaged in, or about, premises where his services required his presence, as a part of such services, within the meaning of section 7 of the act [Mo.R.S.A. § 3695], * * *."
Respondent cites Howes v. Stark Bros. Nurseries and Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839. This case, likewise, does not support respondent's contention for, here, the employer furnished transportation for his employees and employee was injured going to the bus, by which he was transported, on the premises of employer. On 223 Mo.App. 793, 22 S.W.2d loc. cit. 841, the court said:
"As a general rule employees will not be regarded as in the course of their employment while going to or returning from the place of their employment."
This opinion holds that where transportation is furnished employees by employer expressly or by contract or knowingly, the employee is in the employment until he reaches the bus or place from which he is to be transported. Certainly, the facts in the case at bar do not bring claimant under this exception.
One of the exceptions to the general rule is the case where injury is sustained by employee while riding, pursuant to his contract of employment, to and from his work, in a conveyance furnished by his employer.
Murphy v. Wells-Lamont-Smith Corporation, Mo.App., 155 S.W.2d 284, 287. This case not only does not support claimant's position, but states that if the sidewalk, where claimant was injured, had been the ordinary public sidewalk and had not been interfered with by the employer or no part thereof used as a driveway by the employer for his own private purposes, the general rule would have applied and claimant could not have recovered.
Respondent cites Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 917, 161 A.L.R. 1454. In this case the Supreme Court states the law that, in construing the phrase, "arising out of and in the course of employment" each case should be decided upon its own particular facts and circumstances and not by reference to some formula. The court declared the law as follows:
"Unless there is substantial competent evidence to show that, by the conduct of the parties, the activity in which respondent was engaged at the time of injury had become an incident to his employment, he is not entitled to compensation."
The court, in this case held, under the facts, that the injury suffered by the employee was had while performing an act for the mutual benefit of the employer and the employee. Clearly, this case does not support respondent's contention but follows the law as we have heretofore, in this opinion, declared.
Under the facts in this case we conclude that there was no causal relation between the injury and the employment. It is not enough that the injured person may be present at the place of the accident because of his work, unless the injury is the result of some risk of the employment.
The issue of compensable injury in this case was one of fact. There was substantial evidence to support the findings of the Commission.
The judgment of the trial court is reversed.
VANDEVENTER, P. J., and BLAIR, J., concur.