Elliott v. Darby

• Decision Date: 10 September 1964
• Docket Number: No. 8222,8222
• Parties: Dick Harry ELLIOTT, Appellant, v. William DARBY and Otis J. Reser, d/b/a Darby-Reser Motor Co. and Federated Mutual Implement and Hardware Insurance Company, Respondents.
• Court: Missouri Court of Appeals

Page 70

382 S.W.2d 70

Dick Harry ELLIOTT, Appellant, v. William DARBY and Otis J. Reser, d/b/a Darby-Reser Motor Co. and Federated Mutual Implement and Hardware

Insurance Company, Respondents.

No. 8222.

Springfield Court of Appeals, Missouri.

Sept. 10, 1964.

Clyde G. Meise, Mitchell & Meise, Kansas City, for appellant.

Russell D. Jacobson, Max W. Foust, Kansas City, for respondents.

HOGAN, Judge.

This is an appeal from an order of the Industrial Commission denying compensation to the appellant under the provisions of the Workmen's Compensation Law. ¹ The trial court has affirmed the award, and the employee has appealed to this court as provided by Section 22, Article V, of the Constitution of 1945 and Section 287.490 (2). The Commission has found that the appellant did sustain a 'personal injury by accident,' but that the injury did not arise 'out of and in the course of his employment,' as required by Section 287.120 (1), to make the accident compensable.

In brief sketch, the facts are that the appellant--to whom we shall refer as the claimant--was, at the time of the accident in question, working for the employer as a mechanic, 'service manager' and 'parts manager.' The employer's business was described as being 'sales and service of new Ford cars and trucks and of used cars and trucks.' Although the claimant was employed principally as a mechanic, he also had certain supervisory duties and was employed as a welder; in addition, he was in charge of the employer's wrecker service, which was operated on a 24-hour basis. By agreement with the employer, Mr. Elliott received one-half the charges made for wrecker calls, which he took at all hours, though the claimant's normal working day ran from 7:30 A.M. to 5:30 P.M. It is apparent from the record that the claimant was a trusted employee and that he was left in charge of the business in the employer's absence.

Some time prior to the summer of 1959, a number of townspeople, some of whom were customers of the employer, had formed a group known as the Osceola Boat Club. Apparently this club was never formally organized, and its activities were principally social in nature, though there is some indication that the members of the club were attempting to promote recreational and tourist activity along the Osage River at Osceola, where the employer's business was located. The members of the club undertook to construct a floating boat dock about this time, and there is evidence indicating that the dock, when completed, would be available for community use. The employer, however, was not a member of the boat club, nor, he testified, had he ever been approached or solicited for a contribution of funds or services toward construction of the dock.

About the middle of August 1959, Mr. Elliott was approached by one of the members of the boat club, a Mr. Toalson, and was asked if he would be willing to assist in the construction of the proposed boat dock by welding some large barrels (actually 50-gallon oil drums) together as pontoons upon which the dock would float. We gather from the record that the actual process of construction of these pontoons involved spot welding the barrels end-to-end in units of six barrels, and then welding triangular pieces on top of the assembled unit as braces, to which the wooden floor of the dock could be attached. Mr. Elliott testified that he considered the construction of the dock to be a 'community deal,' and understood that neither he nor the employer would receive any compensation for the work he was to do. It also appears that he had never been given permission to donate the employer's services without compensation, and that the employer, at least initially, had no knowledge that Mr. Elliott had undertaken this particular project.

A Mr. Gordon, engaged 'in the feed business' in Osceola, furnished 27 or 28 of the large barrels, and about the middle of August, working on the employer's premises, and using at least in part machinery and materials belonging to the employer, Mr. Elliott began work on the pontoons. The record indicates that he worked 'three or four' mornings before regular working hours and up until 8:00 A.M., and 'one or two nights a week,' on the project for about two weeks before he sustained the accident in question, and that part of the dock had been completed and placed in the water by August 31, when Mr. Elliott was injured. During this two-week period, the barrels were stored on the employer's premises, and the record makes it clear that Mr. Reser (the managing partner of the business) was aware of what Mr. Elliott was doing. Reser's testimony, which is somewhat equivocal, was that he '* * * assumed at that time that he [Elliott] was doing the welding when he was not employed by me during regular hours,' and that he had '* * * said nothing to him [Elliott] about it as pertaining to him, to do it or not to do it.' Mr. Reser testified, and advised the referee, that 'you would have to assume that I either approved or didn't disapprove because I would have had the authority to tell him to quit,' but also stated that 'it was my understanding that he [Elliott] was doing the work. * * * I didn't take the job.' Mr. Reser did say--and the appellant lays much stress on the statement--that he felt he was contributing Mr. Elliott's services, and '* * * I think he feels that way.'

In any event, on the afternoon of August 31, near the end of the work day, Mr. Elliott undertook to finish the project. There was 'no other work in the shop at the time,' so, according to the claimant, Reser said 'that I had a lot of welding to do * * * [and] had better get started on it,' although, as Reser recalled, he said 'if you are going to do the welding, you just as well get started on it so you can get the job completed.' But however that may be, the claimant returned to work shortly after 6:00 P.M. to finish the welding. He had been working only a short time when one of the barrels exploded, apparently from 'the gas that had built up in it,' and he sustained severe and disabling injuries.

As material here, the findings of the Industrial Commission were as follows:

'* * * Neither Elliott or Reser were members of the Boat Club. The record is clear that Reser's prior consent, permission or acquiesance was not secured in connection with the project.

'In any event, the oil drums were subsequently delivered to Reser's premises. That Reser knew of this and Elliott's subsequent work thereon is abundantly clear. With the exception of one 30 minute period, Elliott's labors on building the dock were performed before and after his usual, ordinary and customary working hours. In these after-hour labors he was not paid by Reser. In building the dock Elliott used an electric welder belonging to himself and an acetylene welder belonging to Reser. Reser furnished all the welding rods used on the job albeit unknowingly. On the evening of August 31, 1959, Elliott was working after hours on the docks. While so engaged, one of the oil drums exploded and he sustained serious injuries.

'The evidence indicates that Reser had not received and had no reason to expect (not having been a party to Elliott and Toalson's agreement) any advertising or publicity in connection with building or erecting the boat dock.

'It is the employee's contentious, if we correctly understand his position, that Reser's failure to actually prohibit Elliott from working on the dock on the employer's premises (after knowledge of the same) amounted to a ratification, condonation or acquiesence which adopted Elliott's acts in such a manner as to cause the accident to arise out of and in the course of the employment. Or alternatively, that the benefit of Elliott's labors inured to the good will of Reser's business in such a way as to achieve the same legal effect.

'We find and believe that at the time of the accident the employee was not performing any work required by his employment; that he was not performing any duty of his employment; that he was not engaged in doing something reasonably incidental thereto and that his accident did not, therefore, arise out of and in the course of his employment.'

In their briefs, both parties vigorously argue the effect of the evidence. The appellant maintains that the injury must be said to have been sustained while he was acting in the course of his employment, because: 1) he was under 24-hour call, at least for wrecker service; 2) he sometimes acted in a 'managerial' capacity; 3) he had received instructions from Mr. Reser to finish the welding project, at the time he was injured; 4) the employer testified in substance (as indeed he did) that both he and the claimant believed the claimant's services were being donated toward completion of the boat dock; and 5) Mr. Reser retained the right to control the means and manner in which the work was being done, and, in Reser's words, '* * * I would have had the authority to tell him to quit,' but instead he agreed to and encouraged the performance of the work by the claimant. The force of this evidence, as we understand the claimant, is to demonstrate conclusively that the employer had temporarily enlarged the scope of the claimant's employment to include the welding project, and since the claimant was performing an act for the mutual benefit of the employee and employer, the accident must be considered compensable.

Respondents, on the other hand, argue that the activity in which the claimant was engaged was clearly outside the scope of the employment contract, because: 1) the claimant received no pay for the welding; 2) the work was different from that in which he ordinarily engaged; 3) almost all the welding was done outside regular working hours; 4) the claimant was never directly ordered or authorized to do the welding, nor was he given any instructions as to how to do it; 5) Mr. Elliott had no authority to undertake the welding project on behalf of the employer; 6) the employer had no...