Howes v. Stark Bros. Nurseries & Orchards Co.

• Decision Date: 07 January 1930
• Citation: 22 S.W.2d 839,223 Mo.App. 793
• Parties: STEVE HOWES (CLAIMANT), RESPONDENT, v. *K BROS. NURSERIES AND ORCHARDS COMPANY (EMPLOYER) AND AETNA LIFE INSURANCE COMPANY (INSURER), APPELLANTS. [*]
• Court: Missouri Court of Appeals

22 S.W.2d 839

223 Mo.App. 793

STEVE HOWES (CLAIMANT), RESPONDENT, v. *K BROS. NURSERIES AND ORCHARDS COMPANY (EMPLOYER) AND AETNA LIFE INSURANCE COMPANY (INSURER), APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

January 7, 1930

Appeal from the Circuit Court of Pike County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

C. E Klein for appellant.

(1) The circuit court erred in sustaining the award of the Missouri Workmen's Compensation Commission for the reason that the facts found do not support the award that the accident did arise out of and in the course of the employment, as provided for by Compensation Law. Laws of Missouri, 1927, page 496. Section 7, par. (c) of the Missouri Workmen's Compensation Law; Nesbitt v. Twin City Forge & Foundry Co., 145 Minn. 286, 177 N.W. 131; Orsini v. Torrance (Conn.), 113 A. 924; Clark v. Vorhees, 231 N.Y 14, 131 N.E. 553; Smith v. Levis-Zukoski Mercantile Co., 14 S.W. 470; Ex Parte American Fuel Co., 210 Ala. 229, 97 So. 711; Rotolo v. Punxsutawney Furnace Co., 277 Pa. 70, 120 A. 704; Houlehan v. Pullman Co. (Pa.), 124 A. 640; Kent v. Virginia-Carolina Chemical Co. (Va.), 129 S.E. 330; Ex Parte Taylor, 213 Ala. 282, 104 So. 527; Plaintiff in Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 150 N.E. 276; Paulauski's Case (Me.), 135 A. 824. (2) The circuit court erred in sustaining the award of the Missouri Workmen's Compensation Commission for the reason that the said Commission acted without or in excess of its powers. Missouri Workmen's Compensation Act, sec. 44, Laws of Missouri, 1927, page 513.

F. D. Wilkins for respondent.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action for personal injuries brought under the Workmen's Compensation Act. Plaintiff's injury occurred on November 12, 1927. He was at that time, and had been for several years prior thereto, in the employ of Stark Brothers Nurseries and Orchards Company, working as a teamster at their nurseries, consisting of a tract of several hundred acres, located two miles west of the city of Louisiana, in Pike County. At the time of his injury, which occurred shortly after 5:30 o'clock in the evening, he was on state highway No. 54, which runs through the nurseries' premises. He had taken his team from the field, where he had been working during the day, to the barn which was located on the north side of the highway, and had ridden with several fellow employees in a wagon belonging to the superintendent of the nurseries company east along the south side of the highway, a distance of two to three hundred yards to a point opposite a driveway leading north from the highway to the office of the company, which was located about sixty yards from the highway. There was a bus standing in the driveway just off the highway, belonging to the nurseries company, which was furnished by the company for the purpose of transporting its employees to and from its premises. The bus was standing at the place where it was customarily boarded by employees to be transported to Louisiana where they resided. When the wagon in which plaintiff was riding from the barn reached a point about opposite the driveway in which the bus was standing, it stopped and plaintiff got out and started across the highway to board the bus, passing behind the wagon in so doing. As he was thus crossing the highway, he was struck by a westbound automobile, and thereby received the injuries for which he sues. The automobile belonged to and was driven by a stranger, who was not connected in any way with the nurseries company. The bus, though it sometimes stopped to receive employees for transportation on the south side of the highway opposite the driveway, usually stopped for that purpose in the driveway where it was standing at the time plaintiff was injured. The nurseries company had been furnishing this bus for the transportation of its employees to and from its premises during all the time plaintiff was in the employ of the company. It stopped regularly at certain designated places in Louisiana to receive and discharge employees being transported to and from the nurseries premises. No charge was made for the transportation. Nothing was said about transportation at the time plaintiff was employed, but he knew that free transportation was furnished. Plaintiff's usual hours of work at the nurseries were from seven o'clock in the morning until 5:30 in the evening, starting at seven o'clock in the morning and quitting at 5:30 o'clock in the afternoon, at the barn. So, on the day of his injury, plaintiff quit work at 5:30 o'clock, and was on his way to take the bus when he was injured. The employees of the nurseries company usually rode on the wagon on the highway in going from the barn to the bus, and the foreman of the company knew this.

The Compensation Commission awarded plaintiff compensation in amounts aggregating $ 2773.93, and made the following statement of facts and rulings of law:

"The employer regularly furnished a bus to transport its employees to and from a city and its plant, about two miles distant, before and after working hours. While crossing a public highway to take the bus home from work the employee was struck and injured by a passing automobile.

"Where an employer furnishes a bus to transport its employees to and from their work between a city and its plant, two miles distant, such transportation is incident to the employment, and an accident to an employee in connection with such transportation arises out of and in the course of the employment.

"An accident to an employee while crossing a public highway to ride home from work in such bus is so connected with such transportation that it arises out of and in the course of the employment."

From this award the defendants appealed to the circuit court. Upon the hearing of the cause in the circuit court, judgment was given for plaintiff for $ 2870.90, from which judgment defendants have appealed to this court.

Section 3 of the Workmen's Compensation Act (Missouri Session Laws 1927) provides that "the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this act for personal injury or death of the employee by accident arising out of and in the course of his employment." Defendants insist here that plaintiff's injury did not arise out of and in the course of his employment within the meaning of that section, and that therefore the judgment of the court below should be reversed.

In Flanagan v. Webster (Conn.), 142 A. 201, which is peculiarly instructive here, the court said:

"The plaintiff lived in the village of West Cheshire. The only way in which he could reach his work was through transportation furnished by the defendant employer in one of its trucks which stopped for him in the morning usually at a point on the state road and carried him to his place of work. It ordinarily came along in time to get the men to their work at 6:30 A. M. On the stated morning the plaintiff left his home and walked to the state road where the truck usually picked him up. It was late on this morning; the weather was cold and because of this the plaintiff walked along the road in order to keep warm, and upon its left side. The truck came up with him, and stopped on the right-hand side of the road for him to board it. While plaintiff was crossing the highway to board the standing truck, he was struck by an automobile and sustained a fracture of the femur. . . . If plaintiff's injury occurred in the course of his employment, manifestly it must have arisen out of the employment. The sole question for our determination is, Did plaintiff's injury arise in the course of his employment? 'In the course of points to the place and circumstances under which the accident takes place and the time when it occurred.' An injury is 'said to arise in the course of one's employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it.' [Larke v. Hancock Mut. Life Ins. Co., 90 Conn. 303, 308, 97 A. 320, L.R.A. 1916E, 584; Whitney v. Hazard Lead Works, 105 Conn. 512, 517, 136 A. 105.] As a general rule employees will not be regarded as in the course of their employment while going to or returning from the place of their employment. We note in Lake v. Bridgeport, 102 Conn. 337, 128 A. 782, that the rule is subject to many exceptions. Four of these we specify in Whitney v. Hazard Lead Works, supra, and all of the four exceptions find illustration in our decided cases. Two of these exceptions are: 'Where the employer contracts to and does furnish transportation to and from work,' and 'where the employee is using the highway in doing something incidental to his employment, with the knowledge and approval of the employer.' . . .

"The defendant employer furnished the plaintiff transportation to and from his place of work. The work began when the employee reached the place of work. The employment certainly included the period of transportation, for that was by the terms of the employment made incidental to it by the express agreement of the employer. And we have held that the relation of master and servant exists during the period of transportation, whether the transportation be under the express agreement of the employer, or by his implied consent inferred from his knowledge of the practice of transporting the employee and his expectation that this practice would continue. Swanson v. Latham, 92 Conn. 87, 101 A 492, and Sala v. American Sumatra Tobacco Co., 93 Conn. 82, 105 A. 346, were cases involving injuries to an employee while riding, pursuant to his contract of...