Graves v. Central Elec. Power Co-op.

• Decision Date: 12 November 1957
• Docket Number: No. 45942,No. 1,45942,1
• Citation: Graves v. Central Elec. Power Co-op., 306 S.W.2d 500 (Mo. 1957)
• Parties: Bonnie Jean GRAVES and Susan Graves, Respondents, v. CENTRAL ELECTRIC POWER COOPERATIVE, Employer-Appellant, and Employers Mutual Liability Insurance Company, Insurer-Appellant
• Court: Missouri Supreme Court

Page 500

306 S.W.2d 500

Bonnie Jean GRAVES and Susan Graves, Respondents, v.CENTRAL ELECTRIC POWER COOPERATIVE, Employer-Appellant and Employers Mutual Liability Insurance Company, Insurer-Appellant.

No. 45942.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1957.

Howard F. Major, Columbia, for appellants.

Hendren & Andrae, by Henry Andrae, Jefferson City, for respondent.

COIL, Commissioner.

This is a workmen's compensation case wherein employer and insurer have appealed from the circuit court's judgment affirming the award of the Industrial Commission whereby deceased employee's widow and minor child were awarded benefits in an amount now in dispute which, irrespective of all contingencies, exceeds $7,500.

Employer, Central Electric Power Cooperative, generates, transmits, and sells electric power to other electric power cooperatives.Employee, James Edwin Graves, worked in the transmission department as a substation superintendent and 'trouble shooter.'Rebert W. Pawley was transmission superintendent and Chester Barnett, transmission line foreman.Graves, Pawley, and Barnett were the only three supervisory employees in the transmission department and were the only three technically qualified to direct repair crews when transmission breakdowns occurred.

Employer's generating plant was at Chamois and its general offices in Jefferson City.Those offices were closed and employees did not work on Saturdays and Sundays except one of the three mentioned transmission department supervisors, one of whom was on 'stand-by' duty every Saturday, Sunday, and holiday.'Stand-by' duty meant that one of the supervisors would be available either at his residence, which was connected with the Chamois substation by private telephone, or in the Jefferson City area through a 2-way radio in a company station wagon, to receive emergency calls.Such person, upon receiving a call, would assemble a crew of employees and accomplish the necessary repair.Graves was paid $400 per month as salary for his total services, which included stand-by duty.

Employer had for several years conducted a company picnic and chose to continue that practice in 1955.Saturday, August 7, was designated as picnic day at Renn's Lake, a picnic area, including a small lake, close to Jefferson City.Written invitations were issued to each employee and his family.Attendance at the picnic was optional.

Employees Barnett and Pawley were to be out of the state on August 7 and, as noted, Graves was the only other technically qualified employee to perform stand-by duty on that date.It was therefore made certain that Graves would be on stand-by duty on the 7th, including that part of the day occupied by the picnic.

Graves had never before attended a company picnic.Before Pawley, Graves' immediate superior, left on vacation, he talked with Graves about attending the picnic.While Pawley's total testimony concerning his conversations with Graves with respect to the subject of picnic attendance may support different inferences and conclusions, nevertheless our examination and analysis of that testimony causes us to be of the view that it constituted substantial evidence from which the finders of fact reasonably could have found the facts with respect thereto as they are now stated.

Because the picnic was a company project whose purposes were to promote a closer social relationship among employees and to provide employee recreation, and because Pawley knew that Graves had never before attended a picnic, and because Graves had been recently promoted to a supervisory capacity, and because both Pawley andBarnett, the only other persons in supervisory capacities in the transmission department, would not be in attendance at the picnic, and because Pawley wanted the supervisory personnel of the transmission department represented, and because Pawley was grooming Graves for the position of transmission superintendent at some future date, he, Pawley, insisted that Graves attend the picnic for his own benefit as well as for the benefit of the company.Pawley fully expected Graves to attend and would have considered his failure to have attended to have been unsatisfactory employee conduct.Pawley or no other person representing the employer ordered Graves to attend the picnic in the sense that he would either attend or be fired, but Pawley's insistence had the force of an order so far as concerned its effect upon Graves.

Graves thereafter accepted employer's written invitation and it was arranged that Graves would perform stand-by duty during the time of the picnic by being there present with the company station wagon equipped with the 2-way radio.As a result, Graves and his wife and two small children arrived at the picnic grounds about 4 p. m. Graves immediately parked his station wagon, hooked up the battery charger, and established contact through the 2-way radio with the generating plant at Chamois.He then turned the 2-way radio in position to receive, turned its volume control to 'loud' so that the radio could be heard over the picnic area, and proceeded to take part in picnic activities.

Employer had reserved and rented the entire area for exclusive use and had rented and reserved some of the boats which were the property of the proprietor of the picnic grounds for the use of employer's guests.During the course of the afternoon Graves took Mrs. Graves, their two small children--a boy 4 1/2 and a girl 2 1/2, and a 7-year-old neighbor boy for a ride in one of the boats.After Graves had rowed across the small lake and was on the way back and when about 100-150 feet from the nearest shore, the Graves boy fell into the water.In attempting to rescue his son, Graves was drowned.Boating on the lake was one of the picnic activities provided by the employer, and employer's general manager personally knew that Graves and his family were taking a boat ride during the time that Graves was performing stand-by duty.

This is a case of first impression in this state.Essentially employer and insurer contend that there was no substantial evidence to support the finding that Graves' death resulted from an accident which arose out of and in the course of his employment, and that, on the contrary, the evidence established that at the time he met his death Graves was not performing any duty relating to his employment.

As we have heretofore noted, there was substantial evidence from which the finder of facts reasonably could have found that during the picnic and, of course, including the time when Graves was boating on the lake with his family, he, Graves, was performing the duties of his employment which he had been directed to perform and was performing those duties at the place and under the conditions and circumstances the company had created.Graves' employment responsibilities did not cease when he arrived at the picnic grounds but continued, and those responsibilities were the same and just as great when he was boating on the lake as they would have been had he been sitting in the front seat of the station wagon during the time of the entire picnic.In both instances, he was performing his stand-by duty, to wit, awaiting and being available for an emergency call.And, as we have noted, in this case the company wanted Graves to perform that stand-by duty at the picnic grounds and by insisting that he be present at the picnic, in effect directed him to participate in the picnic activities while performing the duties of his employment.

It has been said that, as the terms are used in the Workmen's Compensation Law, an injury 'arises in the course of employment' when it occurs within the period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling duties of his employment or doing something incidental thereto, and that an injury arises 'out 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.Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421, 423[4-6].And while each case should...