*1 Steve (Claimant), Respondent, Howes v. Stark Bros. Nurseries Company (Employer) Orchards Life Aetna In Appellants.* Company (2d) 22 S. W. surance (Insurer),
839. Appeals. Opinion January
St. Louis Court of filed 1930. Compensation Acts, CJ, Juris-Cyc * Corpus References: sec — 76; 132, p. 125, p. 73, n. 72. 34, p. 40, section n. section n. tion Klein appellant. TS. G. *2 D.
F. Wilkins for respondent. injuries brought SUTTON, personal C. This is an action for in,Jury under oc Plaintiff’s Act. curred had time, on November 1927. been He was at that years prior employ Brothers Nurseries thereto, several Stark nurseries, Company, working at their and Orchards as a teamster mips consisting locatеd two acres, of a tract several hundred city County. the time of Louisiana, At west Pike evening, injury, shortly 5:30 which occurred after o’clock through the nurseries’ highway was on he state No. runs field, been premises. had had H:e taken his team from the working during day, on the north to barn was located highway, employees side of the fellow and had ridden several wagon company belonging superintendent a nurseries to the along three highway, south of two to east side of the distance leading yards driveway north from point opposite hundred to sixty highway company, аbout to the which was located office driveway yards standing in highway. was a There bus just company, which was highway, belonging off to nurseries transporting em purpose its company furnished for the standing at The ployees premises. bus was from its transported to customarily employees was boarded where it where, plaintiff wagon in which When the they resided. Louisiana opposite drive point riding about from the barn reached was got ou¡t. plaintiff standing, stopped way was in which the bus passing bus, behind to board the highway started across the highway, doing. As was thus wagon so thereby in received automobile, a westbound was struck belonged The automobile he sues. juries for which by stranger, driven who any way was not connected in with the nurs- company. bus, though eries The stopped- sometimes receive employees transportation on the south side opposite driveway, usually stopped purpose for that in the diive- way standing injured. where it was plaintiff the time company nurseries furnishing been transporta- this bus for the tion of its premises during to and from all the plaintiff employ company. was in the stopped regularly It designated at certain places discharge in Louisiana receive and employees being transported and from premises. nurseries charge transportation. No Nothing was made for the was said about transportation employed, at the time but he knew that transportation free was furnished. usual hours of work Plaintiff’s morning were from until :3f> the nurseries seven o’clock evening, starting morning quit- in the at seven o’clock in the *3 day ting afternoon, So, at 9:30 o’clock in the barn. on the the quit injury, plaintiff o’clock, way of his and was at 5:30 on injured. employees to thе bus when was nurseries take The company wagon highway usually on oh from rode bus, company the barn knew this. and the foreman of to plaintiff compensation in Compensation The Commission awarded following aggregating $2773.93, amounts and made the statement rulings of facts and of law: transport employer regularly furnished a bus to its em-
“The city distant, ployees plant, a about two miles and from and its to working crossing public highway after While before and hours. employee was struck and in- from work the to the bus home take jured by passing automobile. transport employer bus its to
“Where an furnishes city plant, its two miles dis- and from their work between and employment, and an ac- transportation is incident to the tant, such transportation such arises in connection with an cident to employment. in the course of and out highway crossing public while “An accident with such trans-> so connected in such bus is from work ride home ’’ employment. and in the course of arises out of portation that it circuit court. appealed to the award the defendants From this court, judgment was in the circuit hearing of the cause Upon judgment defendants $2870.90, given plaintiff court. to this appealed have (Missouri Ses- Act Section ir- employer be liable shall 1927) that “the provides sion Laws pro- under compensation furnish negligence, respective injury or death of- personal act for visions of this De- employment.’’ of his in the course arising and accident out fendants plaintiff’s injury insist did not arise out here and section, meaning course of his within the judgment and that therefore should be re- of the court below versed. Flanagan (Conn.), peculiarly Atl. v. Webster here,
instructive court said: plaintiff “The village оnly lived in The of West Cheshire. through inway transportation which he could reach his work was furnished the defendant in one of its trucks which stopped morning point for him in usually at a on the state road along him place ordinarily carried work. It came get time to the men their 6:30 A. On the work at M. stated morning plaintiff left his home and walked to the state road usually picked up. truck It was this morn late ing; plaintiff weather was cold because of this the walked along keep warm, the road in order to side. The left up him, stopped right-hand truck came on the side of road for him to board it. While standing truck, board was struck automobile plaintiff’s injury a fracture of femur. ... If
sustained manifestly occured in course must have arisen out sole for our determina plaintiff’s injury is, employment? tion Did arise the course of his ‘In points place the course o£ to the under which circumstances place and the accident takes in time when occurred.’ An jury in the course of is ‘said to arise one’s when it n period occurs within at a where he reasonably may be, reasonably fulfilling the duties *4 engaged doing employment, something or incidental to it.’ Co., 308, Hancock Mut. Life Ins. 90 97 303, 320, v. Conn. A. [Larke 584; 1916E, Whitney L. R. Works, A. v. Hazard Lead 105 Conn. 512, 537, general 136 As will rule not be A. 105.] regarded employment as in the course of their while to or returning place employment. of their We note Lake 102 128 Bridgeport, Conn., 337, 782, v. A. subject the rule is that many exceptions. specify Whitney to Four of we v. Hazard these exceptions all of Works, supra, Lead the four find illustration exceptions in our decided eases. Two of these are: ‘Where the em transportation furnish ployer to does to and from contracts employee using work,’ doing and ‘where some knowledge thing ap incidental employer.’ . . . proval employer transportation furnished the
“The defendant began place of work. The work when employee to and from his. place employment certainly of work. reached included the
797 employ period ivas the terms of the transportation, of for that agreement of em express incidental ment made to And have held relation of master servant ployer. we that the during period transporta transportation, exists of whether by his express agreement employer, im tion be' under the practice knowledge from his of trans plied consent inferred practice porting employee expectation and his would 492, 92 87, 101 A. Latham, Conn., v. Sala continue. Swanson 346, 93 105 A. were 82, Sumatra Conn. v. American Tobacco riding, pursuant involving injuries employee to an while cases conveyance work, in a and from his of contract Contracting Co., 103 employer. Saba Pioneer furnished v. involving injury employee 131 559, 394, A. was a case Conn. knowledge of the em riding his work with the to and from acquiescence it, result and his continued practice, ployer affixing employment as an incident the ob ing the contract employee. Donovan, 217 Mass. ligation transporting the re [In 1915C, Boh 431, 778; 104 Ann. Cas. article Professor 76, N. E. law, seq.] 25 R. 401 et Under the common as we have Harv. lan, Law applied existing and the em it, relation between transportation that, of master and servant. ployer under like 67 11 . Ann. . [Pigeon v. Conn. A. Cas. . Lane, 371.] designate might the automobile Thus the public might property on a boarded; private was to be highway. designated place within If the went to when to board the auto рrior to the time he was reasonable time designated place, time he mobile, would, from the reached that di carrying employer, out the direction of his be then part and a an incident of the rection would become railway just station, as a or bus transportation, the means of wait room, necessary pas ing transportation is a incident Similarly, when an sengers railway or bus line. morning given place, at a or to a certain report
is directed to each required to work person, receive instruction day, been held to сom of master and servant has the relation begun to have reported, time mence injury occurring, prior to the thereafter time, and that in the course of his beginning work, was suffered actually W. 145 N. Althoff, Wis. v. [Milwaukee Com., Wis. A. Milwaukee v. 1916A, L. R. Industrial fact that has been held that the 201 N. W. So it 240.] *5 boarding the train and act of was occurs while the employer of lia not relieve the being transported does not while 96 Building Co., Tidewater bility v. compensation. for [Fisher Nor 103, employer N. 114 does it relieve Law, A. J. 150.] 798 injured premises and en upon employer’s when his beginning
gaged preparation necessary in the the work 89 A. 454, Strauss, Law, v. 85 N. J. 1023.] [Terlecki are underlying principle of these cases Other illustrations & Horton represented Procaccino cases v. found in the class of Quarries 93 Co., Sons, 594; 95 111 v. Conn. 408, Conn. A. Merlino 103 Conn. Reynolds & B. 396; A. Corvi v. 57, Conn. Stiles 104 263 U. S. 674; Cudahy Parramore, v. 449, Packing 130 Co. A. 68 30 A. and Bounti 418, 423, 153, 366, Ed. L. R. S. L. Ct. Febru decided Ed. Brick S. L. Giles, ful Co. v. Ct. you look cannot R., ‘that ary clear,’ Collins, 1928. ‘It M. said gets when he begins the moment as at moment when he (1905), Co.,& Limited employment.’ [Sharp v. Johnson into the 92 L. 7 W. T. C. C. 30.]
“If plaintiff had, when he walked from his home to the state employer’s road where his truck usually picked up, him remained at point, injured this and was there waiting truck, for the there during could be no doubt period plaintiff waiting point this he was in the course of his employment. being His point, upon this finding, would 'have been an incident of his employment, and a implied fulfillment of the direction of his em- ployer. Under the authorities we have cited the employee would held be to have been in the course of his employment. But he did place not remain usually picked truck up. The late, keep truck was warm, order to he walked along- the road, keeping upon the left-hand side of road, which would enable him to see and avoid approaching automobiles toward him- finding self. The is silent as to far how he had to walk before truck overtook him. Whether he could recovered compensa- have employer tion from his suffered him while he was walking upon highway we are not called to determine. up plaintiff The truck walking he was stopped came right-hand road for purpose side of having him get on truck. This was an plaintiff invitation for the to board the given by place, truck at this the driver of the truck Who acting in plaintiff’s behalf of his own and the employer. It was if employer as effective as therefore himself had then ordered plaintiff right to board truck. place highway at this be in the course answered, employment need had waived since right accepted particular highway as a proper place plaintiff for the to board the truck. While the carrying out his employer’s invitation boarding purpose order for the the truck he was struck injured. From the at least an automobile moment when the *6 truck stopped plaintiff began attempt and his to cross if it, before, board began. to employment his He was then and thereafter until struck might reasonably engaged where he been have attempting in might it, to reach the truck so that board and rea- sonably fulfilling doing something order of his which was incidental v. Hancock Mu- [Larke tual Co., supra, Whitney Life Ins. Works, v. Lead su- Hazard ” pra.]
In Berger (2d) (Ky), Wilson Coal Co. 3 S. W. v. Brown appeared that employed Brown was at the of the coal mines com- pany, which, employees, for the of itself and its main- convenience through tained roads property. walking its While from work home Brown a stumbled on stone in road's, thereby of these one injured. The held compensation, court that Brown was entitled to and, in so holding, said: to,
“There can be employee, no doubt that an or while re- turning from, along place leading a work road over his em- use, ployer’s premises, is in and built and intended for his still injured course of his if traveling, ishe while so arising the accident is employ- one out of and the course of his ’’ ment. In Giles, Bountiful Co. v. 276 U. Ct. Brick S. S. Ne phi Giles, employee company, brick while railway company tracks work, on his was struck a way a place killed, train and a habitually by employees crossed company, brick practice company, well known objection part. and carried on In without on its the discussion and disposition of case the court said:
“The Utah for determination is whether the (Comp. Act Laws Utah sec. subse quent amendments), provides compensation personal in jury employee by ‘arising and in death of an out of accident applied employment,’ as was construed and course below,' process the facts contrаvenes due law court . . . And clause of the Fourteenth Amendment. only work, doing actual but reasonable
includes not margin space necessary passing to be used in of time and place the work to be done. If the be is express implied injured passing, with consent of tin- way prem employer’s his work over the employer, to or from ises, proximity and relation or over another such as to those of practical part premises, employer’s be effect arising out of and the course of the as much as one though happenеd engaged it had while the words, employ- performance. other place may begin ment in point of time before tbe work is entered point space before done be the work is to - Probably, reached. general employment may rule, said begin employer’s when the reaches entrance premises done; where the work in some is to be it is clear that but *7 by eases the adjacent premises rule extends to used the include ingress egress or im- express means of the with plied employer. only way . of consent . . the ac- Sincе brickyard railway trades, cess to the its from the east was across company necessarily crossing by contemplated them its of employees. being by No definite the com- line of travel indicated pany employees, company’s or followed full who, knowledge they saw acquiescence, habitually crossed wherever fit, that, made, it results however the risk there- reasonably incurred was incidental and be- to the necessary implied came it annexed as term If- were thereof. strengthen implication company part of of consent on the crossing by any way employees take, it would be chose enough testimony manager, who, knowing to refer to the of of approved by warning the practice, it, did not forbid but in effect simply Giles to be careful.” 105
In Atl. (Conn.), Scalia v. American Sumatra Tobacco Co. 346, employees company, Catherine Scalia where two of the tobacco Josephine Sala, they in which killed when an automobile were riding public highway, automobile furnished were by company transportation in with the for their accordance terms tree, employment, of skidded and collided with a the contract of court said: employer’s liability
“The has been ‘That rule established: provided depends upon conveyance been such cases whether has compliance by him, beginning of after the real express employ- the contract of implied with one terms of tliej ment, employees, for and is with which the mere use one right permitted, required, as a matter use are 78, Case, 217 Mass. 104 by virtue that contract.’ [Donovan’s decedents, Although . . . 1915C, E. 431, N. Ann. Cas. 778.] work, accident, actually their not commenced at the time of company, plain plantation of the defendant upon the tobacco part transportation was a their contract injured they pas- not were they were When with this defendant. conveyance work. their paying stipulated fare sengers, the accident which skidded and caused The automobile company. The rela- paid the defendant was furnished Tobacco women and Sumatra existed between tion that then servant, of carrier Company of master was that
801 they were laborеrs injured they were passenger. At the time being so, This . . . company. employ the tobacco 101 At. al., 92 Conn. v. Latham et like Swanson ease is ‘An received in which we stated that: or from pursuant contract of riding, is one employer, by his conA'eyanee furnished work in ” employment.’ and out of the course of arises Y. S. 179 N. Co., R. York Consolidated Kowalek v. New take a waiting to Avhile company, a railroad where an electricity re by a current work, was killed train home from said: court rail, the from a third ceived journey deceased was entitled to
“The
from his work free of
charge
appellant,
traveling
the cars of the
and while so
would
v. H.
have been
the course of
R. R.
[Russell
134;
488;
5
Co.,
Co.,
17 Y.
v. Y. & H. R.
Hun.
R.
N.
Ross N.
C.
R.
Co.,
Rep.
Vick
Y.
& R.
Y.
47 Am.
N.
C.
R.
N.
v.
H.
McLaughlin
App.
N. Y.
v. Interurban R. R.
Div.
Supp.
oppor
a reasonable
The deceased was also entitled to
883.]
*8
tunity,
premises
done,
after his work was
to remoA^ehimself from the
Chapman
Wrecking
employer.
[Pope
of his-
v. Merritt
Derrick
&
&
App.
Regis
Co.,
69,
Supp.
Bylow
Paper
177
Div.
163 N. Y.
v. St.
Co.,
Supp.
minutes,
179
166
App. Div.
N. Y.
The ten
874.]
elapsed
gave
in his time
the
between the moment when
stay
accident,
during AAdiich
a
moment
the
was
reasonable time
upon
premises
employer, waiting
take the next train
of his
the
happened
plain
AA'hilethe
Therefore,
home.
the accident
whether
journey
begun,
had
waiting,
tiff was thus
or after his homeward
guilty
cited, unless
case,
he was in either
under the authorities
therefrom,
course
removing
some affirmative
him
still
act
the
employment
him.
when
overtook
death
“The case made Avas one of a continuing employment, so that the
proving
burden of
a cessation
thereof fell
appellant.
That
successfully
burden Avasnot
Upon
question
borne.
whether thе
accident
arose out
it is sufficient to
authority
cite
proposition
for the
occurring
that accidents
employees
while trav-
eling to and from their work in an
provided
automobile
by their
only
arise
in the course of
but from
hazards incident
thereto.
of Littler v.
Fuller
[Matter
N.
Y.
regularly by used employees and his fellow who lived direction, same pond, while thus broke through the ice and drowned, was the court said: employee’s day
“While for the been finished and he way was on his accident, home at the still fatal it is settled, may that to workman arise of and out course of his actually working even if he is not injury. time of findings ... In special view of the recited, committee above we opinion are of the conclusion by reached by board, the committеe and death affilrmed arose out the course of his ’’ justified. was In Railway (Ill.), Wabash N. Co. v. Industrial Commission E. (Charles Miller) railroad roundhouse mechanic engine killed day’s work, a switch after he had finished his premises while he walking along the track the railroad’s point where, according custom, to known he intended catch home, a train on which and other allowed to were ride the court said: proceeding
“As in happened the accident before the em- ployee railway company, reached the train of the in error defendant question permitted controlling whether was ride free has no force on the of and in whether the accident arose out In course of the view of all the circumstances case, great weight authority as well sound rea- soning, we think the conclusion follows this accident arose out employment.” of and in the course Miller’s Cudahy Packing Parramore, 263 U. Co. v. S. arising Compensation Act, case under the Utah Workmen’s Parramore) employer’s employee (Joseph to his work at his factory by only way customary practicable was killed *9 locomotive, crossing, road, public while he was on a a railroad ad- jacent factory, a before the time when his day’s to the few minutes factory begin, of the court held that the death service at the employee employment, the sustained a causal relation by compensation employer said imposition liability of on the that the holding, in said: constitutional, and so act was therefore any based, em- liability upon not act or omission the “The is relationship em- which the upon the existence of the ployer, but in of and' the course of employment because ployee bears to the liability impose up- injured. And this is not to been which he has which with injury another for an sustained person on one say enough if connection; that it is there but it is to no former has injury in connection between business be causal employs contributory substantially latter —a connection though proximate it sole need not or cause.” be in grounded is in
The doctrine announced these cases sound rea weight soning, supported authority. Nor is great and is doctrine announced of aсcord Smith v. Levis-Zu thus out (2d) 470, koski S. W. much relied on defend Mercantile speaking here, court, through this ants wherein Commissioner Ben said: nick, authority injury is to effect that to an
“The concensus of employment, 'in the course his when it occurs arises of’ period employment, might within where he reasonably fulfilling be, reasonably and while he is the duties of his engaged task performance or in the of some incidental Necessarily, apply, also thereto. the converse of the rule must so where, injury received, that is time is en- gaged voluntary act, to, acceрted by, in a employer, not known injury employed, outside the duties for which he can- is not be said to have been received the course commonly may
“Likewise it held that an injury be said to reasonably arise 'out of’ apparent, when it is circumstances, consideration all the facts a causal con- nection exists employee’s between the conditions under which the required done, work resulting injury. other words, arises out if is a it natural and though reasonable thereof, even or anticipated; incident not forseen but, events, all it consеquence must be rational of some haz- ard connected therewith.” application
It is true that the of the doctrine thus announced to holding facts resulted in ease that the was not compensation. very entitled to But facts of that case are differ- present ent from the facts of the case.
Manifestly present case, highway on the was, going from the day’s barn to take the bus home after his done, had not removed himself from the course his employment. "While is true the evidence shows he could have reached the bus traveling highway, across without from which we under- absolutely necessary stand go for him to to the bus in yet way, pursued the course which his long impliedly acquiesced and thus directed pursue. think, too, We the hazard regularly of thus and continuously using from his work to bus, was a-hazard exposed peculiar way reason of his em- *10 ployment- something beyond the normal hazard gen- common to the — that, any in public case, eral of view the there was a causal re- —so con- employment. We injury existing between
lation in out arose of therefore, plaintiff’s clude, employment. his of course provisions of sub- view, invoke the
To their defendants sustain Compensation Act, follows': (e) o£ as of division section meaning interpretation affecting of either “Without otherwise ‘personal injuries arising out abridged clause, of of the work- hereby not employment,’ to cover such it is declared course of engaged in, premises their du- or about the except men require pres- being performed, or where their their services ties are part of such services.” ence language In meaning of this is not our view serves
The clear. purpose there little no but introduce confusion where probably caution before. It was inserted out of abundant clearness injuries fairly abridged scope within the of the so-called to exclude broadly be clause lest it too construed. purpose compensate Act
It the manifest injuries arising all accidental workmen out of in the course gives employment. up very of Under act the their compensation ' for limited assured in substantial consideration strikingly present case, This is illustrated in the the act. right plaintiff’s leg, of and the injury resultеd loss his dis- figurement by ugly scar, injuries, face besides other minor pain anguish great not to mention the he must suffered. have compensation $2773.93, $500 He awarded a of which amount Against charged award medical aid. lien was for at- torney’s plaintiff gets compen- Thus $300. fees sum leg, disfigurement, his for his and his suf- sation for the loss'of injuries $2000. fering, slightly net than If sum less compen- defendant, grossest negligence from the resulted considera- be no more. In view such substantial sation would provides act yielded employee, tion compensate in a shall, regard negligence, without arising аny injury received out of and limited amount for liberally con- should the course act provides that The act itself in furtherance that end. strued give in- To to it narrow construction shall be so construed. large in a measure its would defeat sisted the defendants purpose. manifest without insist the circuit court acted
Defendants further larger judgment powers giving amount excess They say commission. the circuit than the amount awarded Compensation Act has no author- provisions court under the only commission, can ity but award appeal increase the the award. reverse, rehearing, for a or set aside modify, remand *11 Syrup State ex rel. Co. v. Missouri Workmen’s Com Brewen-Clark pensation (2d) Commission, Supreme S. W. our Court ruled that, provide while the Act expressly does reverse, the circuit court a ease which it remand does not rehearing, award, judgment set aside the shall render ac cordance with award, necessary implication arising such is the circuit, language. judgment from its pres court ease, ent which is for amount of the award with added, interest is in accordance with the award.
The Commissioner judgment recommends that circuit court be affirmed. PER following opinion CURIAM:—The C., adopted Sutton, opinion
as the judgment the court. The court is the circuit accordingly Haid, J., affirmed. Nipper, P. and Becker JJ., con- cur.
Mattie L. Jackson and James H. (Dependents James Jackson
Jackson, Deceased), Respondents, v. Euclid-Pine Investment Company Liability Employers’ (Employer), Assurance Corporation Appellants.* Corporation, (Insurer), S. W. (2d) 849.
St. Louis Appeals. Opinion January 7, Court of filed 1930. Compensation Acts, CJ, Juris-Cyc * Corpus sec References: — n. n. 13. tion