Brenneisen v. Leach's Standard Service Station

• Decision Date: 05 February 1991
• Docket Number: No. 58249,58249
• Citation: 806 S.W.2d 443
• Parties: Debbie BRENNEISEN, Nicholas Brenneisen, a minor, and Amanda Brenneisen, a minor, Appellants, v. LEACH'S STANDARD SERVICE STATION, Respondents.
• Court: Missouri Court of Appeals

Page 443

806 S.W.2d 443

Debbie BRENNEISEN, Nicholas Brenneisen, a minor, and Amanda Brenneisen, a minor, Appellants, v. LEACH'S STANDARD SERVICE STATION, Respondents.

No. 58249.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 5, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied March 13, 1991.

Application to Transfer Denied May 3, 1991.

John C. Weller, St. Louis, for appellants.

C. Lawrence Mueller, St. Louis, for respondents.

PUDLOWSKI, Judge.

This appeal of a worker's compensation claim comes to this writer on reassignment. We reverse and remand in accordance with this opinion.

Claimants assert the Commission erred as a matter of law in finding that decedent's fatal injury did not arise out of and in the course of employment. Claimants further assert the Commission's order is based upon a clearly erroneous finding of fact that no employee ever went home to retrieve soiled uniforms during working hours.

Decedent worked as a mechanic at employer's service station. He worked the evening shift, from 2 p.m. to 10 p.m. and frequently worked overtime. Employees at this service station wore a uniform consisting of pants and a shirt displaying the employee's name and the word "Certicare." The uniforms were supplied by Unitog Company, and that organization cleaned and maintained the uniforms. Approximately ten dollars per week was deducted from each employee's wages to pay for the cost of cleaning the uniforms, whether the employee actually had the uniforms cleaned or not.

An established system existed to facilitate cleaning the uniforms. On Friday mornings, the Unitog representative would pick up the soiled uniforms and leave a clean supply for each employee for the following week. If an employee failed to leave his soiled uniforms at the station for the Friday pickup, that employee would have clean uniforms for the following week, but not the week thereafter.

On the day of the accident, a Thursday, decedent drove his personal vehicle to work. His wife called him during his shift to inform him that he had forgotten to take his soiled uniforms with him to the station. Decedent told his wife he would retrieve them after work. After decedent clocked out, at 10:37 p.m., he rode home on a fellow employee's motorcycle, retrieved his uniforms and was returning to the place of employment. On the return trip he collided with a parked car, which resulted in his death.

The fundamental purpose of the Worker's Compensation Law is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment. The law is to be broadly and liberally interpreted and is intended to extend its benefits to the largest possible class. Any question as to the right of an employee to compensation must be resolved in favor of the injured employee. Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783 (Mo. banc 1983).

In Wamhoff v. Wagner Electric Corporation, 190 S.W.2d 915, 917 (Mo. banc 1945) the Supreme Court said:

The courts of this and other states have often found it necessary to construe the phrase 'arising out of and in the course of employment,' but no all-embracing definition has yet been framed. [E]very case involving this phrase should be decided upon its own particular facts and circumstances and not by reference to some formula.

. . . . .

Each case [must] turn upon the point of whether, under its particular circumstances, the injury arose from something which had become an incident to the employment. (Emphasis added).

The doctrines which the claimants relied upon are the "dual purpose" and "mutual benefit" rules. These two rules are often used interchangeably. McClain v. Welsh Co., 748 S.W.2d 720 (Mo.App.1988). The guiding principles for this court to review the Industrial Commission's decision are elaborately set out in McClain, 748 S.W.2d 720 at 724, and therefore need not be repeated here.

The dissenting opinion would affirm the commission's award because the claimants failed to show that the injury did "arise out of the deceased's employment." The opinion stresses that the death did not result from a risk of his employment and relies on Beck v. Edison Bros. Stores, Inc., 657 S.W.2d 326, 328 (Mo.App.1983) where it elucidates that the employee is subject to the same hazards to which the general public is exposed and he was not, by reason of his employment, exposed to a greater danger than the public at large. The facts of this case belie that principle.

A review of the transcript reveals that the hearing administrative law judge became ill and was unable to make the award. The parties agreed that another administrative law judge could, upon review of the transcript and legal file, render an award. He did so. The Labor and Industrial Commission affirmed the administrative judge's award by a 2-1 opinion. The majority opinion incorporated and made as part of its decision the opinion of the non-hearing administrative law judge's opinion.

The majority opinion in pertinent part held:

The accident occurred at a place which was on a normal route between the place of employment and the employee's home. The place of accident was at a location where the employer might reasonably expect the employee to be when going to or coming from work. A question of deviation from a normal route has no bearing in this matter.

The opinion continues:

Mr. Leach, the employer, testified that charges for the uniforms were deducted from the employee's wages and that the uniform company would collect the uniforms on Friday mornings. He encouraged the use of uniforms but the question of whether or not uniforms were mandatory was never discussed. No individual was terminated for failure to wear a uniform; No one ever went to obtain a uniform to wear or retrieve soiled uniforms during working hours and the only objections the employer made regarding dress was related to wearing a T-shirt while at work. The fact that employees wore uniforms and appeared equal was, in the employer's opinion, an asset to the business. The indication by the employer that the uniform company would stop the following Monday for those who forgot to return the soiled uniforms on Friday is only reflected by the employer. Fellow employees did not testify as to this procedure. (Emphasis added).

The findings of the commission do not comport with the testimony of the owner of the service station. The deposition testimony of Bob J. Leach reveals:

Q. [by Mr. Weller, Atty. for Claimant] What would happen if an employee says, 'Bob, I don't want any money taken out of my check for uniforms?'

A. [Mr. Leach] Well, at that point, you know, it has to either come up to whether they're a good enough employee to keep them, or they need to wear uniforms. That's why I went to furnishing uniforms myself.

Q. Okay. So it was your desire then and your policy that your employees wear uniforms. Is that right?

A. Yes.

Q. Okay. And it was your preference then that the employees wear the uniforms that you had arranged for them from Unitog Company. Is that right?

A. Yes.

Q. Okay. Were your employees ever given the option of arranging uniforms at any other company or from any other source?

A. The question never came up.

Q. Okay. So, if an employee came, came to work and did the work that was asked of him but just refused to wear the uniform that was provided to him, he would not be fired or told to wear a uniform?

Mr. Mueller: I would object to this question because it's previously been answered, but you can answer it again. Go ahead.

A. I don't like the opinion of a man wearing a T-shirt on the driveway to the public, and I will not allow that, but they can go get a shirt if they go borrow shirts from other men. They can do whatever, but I do not allow a t-shirt on the driveway.

Q. (By Mr. Weller) All right. You stated earlier, I believe, that it's your preference [sic] that a uniform be worn. Is that right?

A. That's the image.

Q. Okay. And what benefit is that to you as an operator of this company that you've operated since 1978 at this location? What benefit derives for you in seeing your employees in their uniform?

A. I know you only want the questions answered, but a uniform is to benefit the employee, too. It's to protect their regular clothes, and all the men like uniforms.

Q. Right, and I understand that. But what benefit comes to you from you seeing your employees in these uniforms?

A. All my men look equal.

Q. And what is that? Why is that?

A. In uniform.

Q. Okay. And what does that do for you?

A. It sets an image for your place of business.

Q. And that image is good one you feel?

A. I feel it's a good image, and that's the image that they have to accept if they work there. They want to look good, too. (Emphasis added).

Q. Okay. In that same regard now, to your knowledge, or from any other source, what you heard, had any other employees ever made a trip at the end of their shift to go home or go anywhere else and get uniforms and bring them back to the station?

A. No.

Q. Now, I'm trying to be--I'm not trying to be particular with my answer, but I'm going to broaden the question out a little bit further. Not only at the end of their shift, but at the beginning of their shift or during their shift or during their lunch break, I'm talking about at any time, had you ever known an employee to go, for the purpose of leaving your station, going somewhere, getting uniorms [sic] and bringing them back to the station so that the dirty uniforms could be turned in?

A. Okay. Then if you're going to put it that way, possibly. I've let them go while they're on the clock to get their uniforms. They wasn't forced to, but I forget mine.

A. Well, even if they're working and they say, "I forgot my uniform. The uniform man's coming in an hour. Can I go get my uniforms," and if they live close, I've forgotten mine and I went and got them. I'm being honest now.

Q. And I appreciate that.

A. I forgot mine and...