Daniels v. Krey Packing Co., 48282

Decision Date10 April 1961
Docket NumberNo. 1,No. 48282,48282,1
Citation346 S.W.2d 78
PartiesEdna DANIELS, Plaintiff-Appellant, v. KREY PACKING COMPANY, a Corporation, Defendant-Appellant
CourtMissouri Supreme Court

Hough, Herrmann, Nichols, Hormberg & Filippine, Charles T. Herrmann, Clayton, for plaintiff-appellant.

R. C. Reis, St. Louis, for defendant-appellant.

HOLLINGSWORTH, Judge.

Plaintiff, an employee of defendant, sustained personal injuries when she undertook to enter the storeroom of defendant's packing plant to obtain therefrom a meatcutter's knife for use in the course of her employment. After receiving workmen's compensation in the sum of $610 for the injuries so sustained by her, she brought this action at common law for damages for her said injuries. Her petition alleged that defendant maintained a store at which persons were invited to purchase the supplies therein kept; that a small door, hinged into and forming a part of a large sliding door, provided ingress and egress of persons invited into said storeroom as customers; that as she, a business invitee of defendant, was entering said store through the small door, defendant negligently caused or permitted the large sliding door to fall upon and injure her. Defendant's answer denied that the general public was invited into said storeroom and denied the negligence alleged in the petition and pleaded plaintiff's contributory negligence. The answer also affirmatively pleaded that the supplies kept in said storeroom were sold to defendant's employees only for their convenience and that plaintiff, when injured, was an employee of defendant and as such was covered by the provisions of the Workmen's Compensation Act of Missouri. Plaintiff's reply was a denial of the new matter alleged in defendant's answer.

At the close of all of the evidence, defendant filed its motion for directed verdict, alleging, among other grounds, that, under the law and the evidence, plaintiff was an employee of defendant and subject to the provisions of the Workmen's Compensation Act and that the court did not have jurisdiction of the subject matter. The court indicated it had some doubt as to whether plaintiff had a common law action, but stated it would reconsider that matter after verdict, if necessary. The issues of defendant's negligence and plaintiff's contributory negligence were thereupon submitted to a jury, which returned a verdict finding those issues in favor of plaintiff and assessing her recovery at $37,500. Defendant filed motion for judgment in accordance with its motion for directed verdict and, in the alternative, for a new trial. The trial court sustained the motion for judgment, set aside the verdict and entered judgment for defendant, and, in the alternative, further ordered that if the judgment should be reversed on appeal and if within 10 days plaintiff would remit $17,500, the motion for new trial would be denied; otherwise, it was to be sustained on ground of excessiveness of the verdict. Both plaintiff and defendant appealed, each reasserting the contentions made in their respective pleadings.

It is admitted that defendant is a major employer, as that term is defined in the Workmen's Compensation Act, and was operating its packing plant at which plaintiff was an employee under the provisions of the Workmen's Compensation Act, Chapter 287 RSMo 1959, 1 V.A.M.S., at the time plaintiff was injured; and that plaintiff was also subject to the provisions and restrictions thereof. Necessarily, therefore, if plaintiff's injuries arose out of and in the course of her employment, defendant became liable only to furnish the compensation provided in the Act and stands freed of any other liability whatsoever. Section 287.120. As we understand plaintiff's brief, she does not contend otherwise. She does contend, however, defendant not only failed to support its affirmative plea of the applicability of the compensation act but that defendant abandoned that defense in failing 'to submit the same in the form of an instruction to that effect.'

The facts are not in dispute. Consequently, the question of whether plaintiff's injuries arose out of and in the course of her employment becomes a question of law for determination by the trial court. McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344, 346; Lupton v. Glenn's Oyster House, Mo.App., 266 S.W.2d 53, 55; May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845, 849; Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628, 634-635. Defendant, therefore, was not in error in submitting that issue to the court instead of the jury. We turn then to the admitted facts to determine if plaintiff's injuries arose out of and in the course of her employment. If they did, the judgment must be affirmed, irrespective of all other questions raised in the briefs of either party.

Plaintiff had been intermittently employed by defendant at its meat packing plant, located at Twenty-First and Bremen Streets in North St. Louis, since 1953. She began the period of employment here involved on February 19, 1957, and sustained the injuries in question on February 21st thereafter. She was paid on an hourly basis. Her 8-hour work day began at 6:30 a. m. and ended at 3:00 p. m., with a half-hour (11:00 to 11:30 a. m.) off for lunch. She was permitted either to bring her lunch and eat it at the plant or to eat 'in the restaurant across the street, or in the plant too at the restaurant.' Her place of work was in the pork-trim department on the third floor of the plant. Her duties were to trim fat from pork by means of a knife similar to a butcher knife. She purchased a knife for that purpose at defendant's storeroom at the plant on either February 19th or 20th. That knife proved to be too small for efficient use and she borrowed a knife (apparently from a fellow worker) which she used while waiting an opportunity to return the knife she had purchased to the storeroom to exchange it for a larger one. She could leave her job during working hours only with written permission.

On February 21, 1957, she brought her lunch to the plant when she came to work. At 11:00 o'clock she, carrying her lunch and the knife she desired to exchange, left the third floor of the plant, went to the street level of Twenty-First Street, which extends along the east side of the portion of the plant housing the pork-trim department, and crossed to the east side of Twenty-First Street to another portion of defendant's premises in which the lockers and restroom provided by defendant for its female employees are located. There she ate the lunch she had brought with her. Finishing the lunch at about 11:15, she, pursuing the most direct route, took the knife to the storeroom to exchange for a larger one.

She had been in the storeroom four or five times during the entire course of her employment and was familiar with its location and the entrance thereto. It fronts on and is located at 2105 Farrar Street, which extends east and west adjacent to and along the south side of defendant's plant. It is not open to the public, but is maintained by defendant for the benefit and exclusive use of its employees. There they may purchase at cost work clothing, such as caps, boots and frocks worn at their work for defendant, and utensils used by them in that work, such as knives, 'steels', whetstones and other utensils. The exterior is constructed of upright board planking. The only entrance thereto is from the public sidewalk extending along Farrar. The entrance consists of a sliding door of the same material as the exterior wall. That door is 12 feet wide and 8 feet high, weighs 400 to 500 pounds, and is suspended on a track immediately above its top, so that when it is slid to the east for the distance of its width, an entrance of about 12 feet in width is provided for the use of trucks, etc. For the use of defendant's employees, however, a small door, some two feet wide and 6 to 7 feet high is installed at street level in the center of the sliding door. Immediately above the small door appears a sign bearing words: 'Krey Packing Storeroom 2105 Farrar.' The small door is hinged from its right side (as one faces it from the street) and opens outward by pulling an ordinary doorknob affixed on its left side. On the morning of the day plaintiff was injured, defendant, without knowledge thereof on the part of plaintiff, moved the sliding door eastward beyond the limits of its tracks for the purpose of repair of the track upon which it was operated. The door was then left leaning against the portion of the storeroom wall to the east of the entrance while the repairs were being made.

Plaintiff, walking westward on Farrar, came to the door as it thus leaned against the wall. Not noticing that it had been removed from its track and was leaning against the wall to the east of the entrance, she grasped the knob of the small door and pulled outward to open it, whereupon the whole sliding door fell outward upon her, causing the injuries for which she was paid workmen's compensation and for which she, in this action, seeks compensatory damages.

Plaintiff insists that at the time she was injured she was an invitee of defendant and not subject to the provisions of the Workmen's Compensation Act, because: (1) the accident occurred during her lunch...

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    ...receives no pay for the lunch break and is not under the employer's control, being free to leave the premises."); Daniels v. Krey Packing Co., 346 S.W.2d 78, 83 (Mo. 1961) ("By the great weight of authority, it is held that injuries occurring on the premises during a regular lunch hour aris......
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    ...Johnson v. Medlock, Mo.App., 420 S.W.2d 57, 59(3); Raef v. Stock-Hartis, Inc., Mo.App., 416 S.W.2d 201, 204(1).6 Daniels v. Krey Packing Company, Mo., 346 S.W.2d 78, 81(2); May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845, 848(2); Lupton v. Glenn's Oyster House, Mo.App., 266 S.W.......
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