Culberson v. Daniel Hamm Drayage Co.

Decision Date09 January 1956
Docket NumberNo. 2,No. 44703,44703,2
Citation286 S.W.2d 813
PartiesIrene Johnson CULBERSON, also known as Bessie Brown, and Flora Hampton, by Clara Hampton, Appellants. v. DANIEL HAMM DRAYAGE COMPANY and American Mutual Liability Insurance Company, Respondents
CourtMissouri Supreme Court

James Bell Higgins, Robert E. Keaney, St. Louis, for appellant Irene Johnson Culberson.

Milton R. Fox, William R. Kirby, St. Louis, for appellant Flora Hampton.

Albert I. Graff, Courtney S. Goodman, Malcolm I. Frank, St. Louis, for respondents.

STOCKARD, Commissioner.

The Industrial Commission of Missouri made a final award, with one member dissenting, affirming the award of the Referee of the Division of Workmen's Compensation, in the amount of $11,320, and funeral expenses, in favor of appellant Irene Johnson Culberson, also known as Bessie Brown (hereinafter referred to as appellant Brown) as the sole total dependent, for the death of her husband Arthur Culberson, also known as Joseph Willie Brown (hereinafter referred to as Joe Brown).

Flora Hampton, a minor, (hereinafter referred to as appellant Hampton) also filed a claim with the Workmen's Compensation Commission contending to be the minor child and a total dependent of the deceased. The Industrial Commission denied her claim, but gave no reason for doing so.

The employer and appellant Hampton appealed and the Circuit Court of the City of St. Louis set aside the final award of the Commission on the ground that the accident resulting in the death of Joe Brown did not arise out of and in the course of his employment. This made unnecessary the consideration of the merits of the appeal of appellant Hampton.

Joe Brown was employed by Daniel Hamm Drayage Company as a 'helper' and he regularly engaged in loading sacks of flour from freight cars to trailers. On May 1, 1952, he and Charles Young, Jr., loaded a trailer and then rode with the driver, Fred Odenthal, when he took the loaded trailer to the Walter Freund Baking Company. The tractor-trailer was parked on the public street near the bakery and the three men walked to a nearby restaurant. Odenthal stayed there to eat his lunch and the other two purchased sandwiches and returned and sat in the cab of the tractor. The day was 'awful hot' and after eating their sandwiches they sought a cool place to rest. Young laid down next to the trailer and Job Brown laid down under the trailer in the shade. After talking a few minutes the two men fell asleep. About fifteen minutes after the end of the lunch period Odenthal returned and moved the trailer preparatory to backing in into the bakery and ran over Joe Brown. The injuries he suffered resulted in his death.

The helpers were not required to remain with the trailer during the lunch period, and they were not to unload the trailer. Their only duties immediately following the lunch period were to wait and be available when the trailer was unloaded, which would take about forty-five minutes. At the time the accident occurred Joe Brown was on a pay status with his employer. No permission had been given for the helpers to rest under the trailers but there was no evidence that the practice was prohibited. The shade of the trailer was the nearest available shade.

The finding of the Industrial Commission (omitting citations) in the parts here material was as follows: 'We further find that employee's death occurred within the period of his employment, while he was resting in the shade of employer's trailer tractor which parked during the lunch hour, and during an enforced lull in his employment, while employee was awaiting further orders as required by employer; that employer had knowledge of such practice and custom; that employee at the time was doing something reasonably necessary for his health and comfort and was performing a service incidental to his employment; and that such action by employee did not constitute a departure from or an abandonment of his employment. We further find that while the conduct of employee in seeking the comfort of shade on a hot day under employer's truck may have been thoughtless, reckless or negligent, it did not operate to take him out of his employment and bar him or his dependents from the benefits of the Workmen's Compensation Law.'

In reviewing this case 'we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Const. Art. 5, Sec. 22, V.A.M.S. This does not mean that we may substitute our own judgment on the evidence for that of the Commission. But we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence.' Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421, 423; Lunn v. Columbian Steel Tank Co., 364 Mo. 1241, 275 S.W.2d 298.

No all-embracing definition of the phrase 'arising out of and in the course of his employment' has yet been framed. Every case involving the phrase should 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; Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142, 233 S.W.2d 725. It has been said that an injury arises 'our of' the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Foster v. Aines Farm Dairy Co., supra; Lunn v. Columbian Steel Tank Co., supra; McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344.

'In passing upon this case, it is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master's business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk or injury from such agency which is not shared by the general public.' Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 489; Finley v. St. Louis Smelting & Refining Co., supra. While Joe Brown was waiting for further orders at a place where he and other helpers customarily and frequently waited on hot days during the previous summer with the knowledge of his immediate supervisor, and while not violating any rules of his employer and while being reasonably available (which constituted all the duties he was, at the time, to perform and for which he was then being paid), he was run over and killed by a trailer-truck, an instrumentality solely under the control of his employer. Upon a consideration of all the circumstances there was a causal connection between the conditions under which the work (waiting and being available) was required to be performed and the resulting injury, and therefore the injury arose out of the employment.

It has been said that "an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform." McFarland v. St. Louis Car Co., supra . May v. Ozark Central Tel. Co., Mo.App., 272 S.W.2d 845. Respondents rely primarily on Missouri cases which state 'that an injury to an employee arises 'in the course of' his employment when it 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.' Wahlig v. Krenning-Schlapp Grocer Co., supra [325 Mo. 677, 29 S.W.2d 130]; Fowler v. Baalmann, Inc., 361 Mo. 204, 234 S.W.2d 11; Morgan v. Duncan, 361 Mo. 683, 236 S.W.2d 281; Foster v. Aines Farm Dairy Co., supra. While these cases all announce the above quoted general statement, none of them is sufficently similar on the facts to constitute precedent for this case.

At the time of the injury Joe Brown was performing every duty he was employed then to perform, and the accident occurred within the period of his employment. Therefore the determination of whether the injury arose in the course of his employment depends primarily upon whether he was reasonably fulfilling the duties of his employment under the particular circumstances of this case by going to sleep under the trailer. In our opinion, this depends on whether it can be said that he abandoned his employment, and we think this must be determined from all the circumstances, and not from the standpoint only of the employer but also from that of the employee.

It is the general rule that an employee who has no immediate duties except to wait does not deviate from his employment by utilizing the idle interval for rest and sleep. Larson, Workmen's Compensation Law Sec. 21.74; Spencer v. Chesapeake Paperboard Co., 186 Md. 522, 47 A.2d 385. The falling asleep during the lunch period, and the negligent failing to awaken at the end thereof, did not constitute an abandonment of the employment under the circumstances of this case. See Larson, Workmen's Compensation Law Sec. 21.72, and the following cases cited therein: Corrina v. De Barbieri, 247 N.Y. 357, 160 N.E. 397; Cleveland v. Rice, 209 App.Div. 257, 204 N.Y.S. 423, affirmed 239 N.Y. 530, 147 N.E. 182; Richards v. Indianapolis Abattori Co., 92 Conn. 274, 102 A. 604; Dixon v. Andrews, 91 N.J.L. 373, 103 A. 410, affirmed 92 N.J.L. 512, 105 A. 893.

In some jurisdictions it has been held that an employee seeking personal comfort or performing other acts incidental to his employment is not acting in the course of his...

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