Garbo v. P. M. Bruner Granitoid Co.
| Citation | 249 S.W.2d 477 |
| Decision Date | 20 May 1952 |
| Docket Number | No. 28386,28386 |
| Parties | GARBO v. P. M. BRUNER GRANITOID CO. et al. |
| Court | Court of Appeal of Missouri (US) |
Albert I. Graff, Courtney S. Goodman, and Malcolm I. Frank, all of St. Louis, for appellants.
Ralph H. Schnebelen, of St. Louis, for respondent.
This is an appeal by the employer and insurer from the judgment of the Circuit Court of St. Louis County reversing an award of the Industrial Commission in a proceeding under the Workmen's Compensation Law, Sections 287.010-287.800 RSMo, 1949, V.A.M.S.
The whole question in the case is whether the injury was by accident arising out of and in the course of the employment. If so, it was compensable, and otherwise not.
The claim was by one Joseph Garbo, an employee of P. M. Bruner Granitoid Company, a corporation with its principal place of business in the City of St. Louis where Garbo and the other employees resided.
In August, 1949, the employer was under contract to do a driveway job in Wright City, a small town about 50 miles west of St. Louis on Highway 40. The work was scheduled to commence on Wednesday, August 24th, and six men were assigned to the job, including Garbo and one Nanwiler, who acted as foreman. R. W. Bruner, the president and chief executive officer of the employer, was also on the premises from time to time during the progress of the work.
There was but very little dispute in the evidence, and that largely in regard to the understanding of the parties.
Some few days before commencing the work, Bruner informed the men about the Wright City job and made arrangements with them for their means of transportation. Nanwiler, the foreman, was to go in the employer's own truck, while the others were to ride with Garbo in his car which he voluntarily agreed to furnish. Garbo testified that when the use of his car was first discussed, he inquired of Bruner as to who would pay the expense, and was told, without elaboration, that Bruner would bear the expense. Bruner denied any such conversation, and insisted that the only inquiry he had had from Garbo was whether he would pay for board and room while the men were detained in Wright City, to which he had readily assented. At any rate, Garbo concededly furnished his car with Bruner's acquiescence, and used it to transport himself and four fellow employees out to Wright City on the morning of Wednesday, August 24th. In addition, he carried along a few odd tools which belonged to the employer and which Bruner desired to have taken out to the job.
The men worked through Wednesday, Thursday, and Friday, and at the end of the day's work on Friday, August 26th, a question arose as to whether they should return to their homes in St. Louis over the week end. The job had not been completed, and work was not to be resumed until the following Monday morning. Bruner gave the men their choice of either returning home or of staying in Wright City, where, if they remained, he would pay their room and board over the week end amounting to approximately $54. Notwithstanding the saving to be effected if the men returned to St. Louis to be with their families, Bruner testified that it would have been better for him 'in one way' if they had remained in Wright City so as to be available for starting work promptly rather than to run the risk of having something happen that might cause them to be late in reporting back on the job. Given their choice, the men elected to return to St. Louis; and after inquiring if Garbo would take them in, Bruner admonished them to arrange among themselves for their transportation back to Wright City for the resumption of work on Monday morning. All six men went in Garbo's car; and when they had reached a point about twelve miles out of St. Louis, a highway accident occurred in which Garbo received the injury for which he has sought to be compensated in this proceeding.
Under the terms of the employment the men were entitled to pay from the time they left St. Louis on Wednesday morning for their trip to Wright City where the actual work was to be done. In other words, the first day's service included the time occupied in driving from St. Louis out to Wright City. The regular day's work was from 8:00 o'clock in the morning until 4:30 o'clock in the afternoon. No pay was forthcoming for Saturday and Sunday, during which no work was to be performed; and of course no pay was being earned during the period of the trip back to St. Louis, which was after working hours.
None of the men who rode with Garbo contributed anything towards the expense of the operation of his car, nor had he actually received any reimbursement from the employer.
We have already mentioned the variation between Garbo's own testimony and that of Bruner regarding any prearrangement that Bruner should bear such expense. However all the testimony was in agreement that the matter was discussed shortly before quitting time on Friday, August 26th, the day of the accident.
Garbo testified that he was present during a conversation between Nanwiler and Bruner, when Nanwiler had suggested that Bruner should allow Garbo money for his gasoline, and Bruner had replied that Nanwiler should take care of such obligation out of money he then had on hand. What Bruner had in mind was money advanced to Nanwiler to cover the expense of meals and the like. Bruner had personally paid the charge for the tourist cabins which had been engaged for living quarters. Bruner admitted his direction to Nanwiler to allow Garbo something for gasoline, but was uncertain whether Garbo had overheard the conversation. Nanwiler's own recollection was that he had asked Bruner about the payment of Garbo's expenses, and that Bruner had told him to take care of the matter at the time Garbo was paid for his work. He had then...
To continue reading
Request your trial
-
Heaton v. Ferrell
...Co., Mo., 311 S.W.2d 23, 28(4); Sanderson v. Producers Commission Ass'n, 360 Mo. 571, 576, 229 S.W.2d 563, 566; Garbo v. P. M. Bruner Granitoid Co., Mo.App., 249 S.W.2d 477, 480; Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 499(1).5 Wamhoff v. Wagner Electric Corp., supra, 3......
-
McClain v. Welsh Co., 53117
...v. Junge Baking Company, supra, 432 S.W.2d at 606; Downs v. Durbin Corporation, supra, 416 S.W.2d at 246; Garbo v. P.M. Bruner Granitoid Co., 249 S.W.2d 477, 479 (Mo.App.1952); Koder v. Tough, 247 S.W.2d 876 (Mo.App.1952); Cox v. Copeland Bros. Const. Co., 589 S.W.2d 55, 57 (Mo.App.1979); G......
-
Barton v. Western Fireproofing Co.
...Davis v. McKinney, Mo.App., 303 S.W.2d 189, 193; Counts v. Bussman Mfg. Co., Mo.App., 298 S.W.2d 508, 510(1); Garbo v. P. M. Bruner Granitoid Co., Mo.App., 249 S.W.2d 477, 480; Koelmel v. Montgomery Ward & Co., Mo.App., 247 S.W.2d 880, 886(2). See also O'Neil v. Fred Evens Motor Sales Co., ......
-
Corp v. Joplin Cement Co.
...not arise out of and in the course of his employment. (DaMore vs. Encyclopedia Americana [Mo.], 290 S.W.2d 105; Garbo vs. [P. M.] Bruner Granitoid Co. [Mo.App.], 249 S.W.2d 477, and Koder vs. Tough [Mo.App.], 247 S.W.2d 876). 'Therefore, compensation must be and same is hereby denied.' The ......