Hunt v. Allis-Chalmers Mfg. Co.

Decision Date02 June 1969
Docket NumberALLIS-CHALMERS,No. 25185,25185
Citation445 S.W.2d 400
PartiesB. Orita HUNT, Widow, and Paul C. Hunt, Minor, Dependents of Kenneth M. Hunt, Deceased, Employee, Appellants, v.MANUFACTURING COMPANY, Employer, and Aetna Casualty & Surety Company, Insurer, Respondents.
CourtMissouri Court of Appeals

Edgar S. Carroll, Kansas City, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel, for appellants.

R. Robert Cohn, James F. Stigall, Kansas City, Morrison, Cohn & Stigall, Kansas City, of counsel, for respondents.

SHANGLER, Judge.

Appellants, B. Orita Hunt, widow, and Paul C. Hunt, minor son, as dependents of the deceased employee, Kenneth M. Hunt, made claim for benefits under the Missouri Workmen's Compensation Law in consequence of the death of Mr. Hunt. By a split decision, the Industrial Commission affirmed the award of the referee allowing claimants maximum death benefits. The circuit court reversed the award and entered judgment in favor of the respondents, Allis-Chalmers Manufacturing Company, employer, and Aetna Casualty and Surety Company, insurer. On the date this appeal was taken, total benefits in the amount of $8,520.50 had accrued under the award. Such is the amount in controversy. It is less than $15,000.00, thus jurisdiction of the appeal is properly in this court.

At the outset, we express our indebtedness to counsel for the quality of their briefs and for the mannerliness of their oral presentations.

Counsel concede that the basic facts are not in dispute. The sole contested issue was whether on February 16, 1966, employee Kenneth M. Hunt sustained an accident arising out of and in the course of his employment, resulting in his death. The Industrial Commission explicitly found that he had. The circuit court, in reversing, implicitly found that he had not. The basis for reversal was '(t)here is not sufficient competent evidence in the record to warrant said Industrial Commission in making said award in favor of the plaintiffs'. Section 287.490(1), V.A.M.S., 1959. Where, as in this case, the facts are not controverted, whether the employee's death arose out of and in the course of his employment becomes a question of law. As such, the Industrial Commission's determination is not binding on the reviewing court. Corp v. Joplin Cement Company, Mo.Sup., 337 S.W.2d 252, at page 258; Lawson v. Lawson, Mo.App., 415 S.W.2d 313, at page 316.

The Allis-Chalmers facilities were located at 627 South Cottage Street in Independence, Missouri, and lay, generally, easterly and westerly. 1 The plant abutted Cottage Street to the west and Pleasant Street to the east. A Missouri Pacific Railroad right-of-way ran along the south edge of the plant for a distance of 345.2 feet east from Cottage Street. The width of the right-of-way was 100 feet, extending fifty feet north and south from the center of the main track. From this track, a spur extended northerly and eastward into the dock facilities inside the plant area. A chain link fence, intersticed by fourteen gates, completely enclosed the employer's factory. That portion of the fence fastened in concrete and located to the west and north of the spur encroached upon the right-of-way, but to what extent does not appear. Immediately to the south of the right-of-way was located the Independence Stove and Manufacturing Company. It owned some ground contiguous to the east and south which was connected to Cottage Street to the west by a 200 feet alley owned by the city. This area had initially been used by the Stove Company as a dumping ground but was later graded as a parking facility for its employees and had been so used for the past twelve years. A vestige of its former use remained at the date of trial in the form of a sign located on that property which declared: 'Private Dump--No Trespassing'. The parking area was able to accommodate about 70 cars but only about 10 spaces were habitually pre-empted for the Stove Company's own employees. A cordon of railroad ties was arranged by the Stove Company in order to ensure ample parking space for its own purposes. The remaining area was available for employees of plants in the vicinity and had been so used by Allis-Chalmers employees for many years prior to February 16, 1966. Mr. Elvin K. Luff, an officer of the Stove Company, acknowledged that Allis-Chalmers personnel had parked there 'for a good many years', which practice was known to his company and was neither objected to nor resisted. No formal arrangement or understanding had been concluded between the Stove Company and Allis-Chalmers respecting the use of the lot for parking by the latter's employees. Neither was there any substantial evidence that Allis-Chalmers had ever undertaken to maintain or improve it. However, on those occasions when the irregular parking of their vehicles by Allis-Chalmers employees impeded the use of the lot by the Stove Company's employees, a foreman of the latter would lodge a complaint with Mr. A. C. Scott, Manager of Employee and Community Relations for Allis-Chalmers, with the expectation that the abuse would thereby be corrected. Mr. Scott, in turn, brought such plaints to the attention of the employees by bulletins, both reproving and solicitous in tone, which were posted throughout the plant. The first of these (Claimant's Exhibit AD), issued on September 10, 1963, stated:

'NO PARKING

Allis-Chalmers employees, particularly third shift employes, are parking on Independence Stove Foundry property north of the Enamel Plant and the railroad tracks.

The Stove Foundry has been kind enough to let our employes use the entire area east of their plant. This small space north of their plant between the railroad tracks must not be used by Allis-Chalmers employes.

It would be unfortunate to lose the nice parking area now afforded us because of failure to heed this 'No Parking' warning.

(s) A. C. Scott

A. C. Scott

Personnel Manager'

Thereafter, others, similar in content and temper, were issued on March 13, 1964, April 7, 1965 and February 3, 1966. On July 25, 1966, the employees were notified that, as the alleyway which gave access to the lot from Cottage Street was being paved, no parking would be available there for them.

Mr. Scott, himself, admitted to personal knowledge of the continuous use the employees were making of the Stove Company lot since at least September 10, 1963, some two years and five months prior to the event which is our concern. Although he never suggested its use, neither had he ever instructed any of the Allis-Chalmers employees not to use that lot. On May 27, 1964, Mr. Scott issued a bulletin wherein it was suggested that second and third shift employees use a parking lot owned by a church and located at the northwest corner of River Boulevard and Pacific Street, 2 about a block and a half northwest of the plant. Another Missouri Pacific track was located approximately 1 1/2 blocks north of the Allis-Chalmers facility along Pacific Street and that particular track extended westerly so that it bordered the southern edge of the church parking area. 3 Allis-Chalmers had arranged with the church for such use in consideration for which it agreed to maintain it and pay some of the cost for lighting it. The only other alternative open to the employees was to park on the street. They preferred not to use the church lot because articles had been frequently stolen from the automobiles parked there and street parking was an undesirable alternative because of the risk of being ticketed for various reasons. In any event, whether parked at the church lot or Stove Company area (and for that matter, from what we can gather from the exhibits, even if parked upon the streets) an employee was required to cross one set or another of Missouri Pacific Railroad tracks in order to gain access to the plant.

The Stove Company parking area was within a defilade. In order to get to work from it, Allis-Chalmers employees using the lot emerged from its northern edge and walking northwesterly, first over an improvised bridge of railroad ties, and then upon the south side of the right-of-way embankment. From thence, they crossed the series of tracks northward toward either the south gate which was the more proximate but rarely open, or the west gate, some unspecified distance to the west. A well defined path, much of it discernible in the photographic exhibits, had been worn along this route from the lot to the employer's physical plant. It had been a common occurrence for these employees parked there to use that path in going to and coming from work. During changes in shifts, a flow of foot traffic over the series of tracks from the plant to the lot, in both directions, was fully evident. Mr. Scott had himself seen employees cross the tracks in the manner described without attempting to inhibit or discourage such movement. A longer, more circuitous and less convenient route from that lot to the plant was available. It entailed walking westward from the lot through the alleyway to Cottage Street, thence north along Cottage Street up to its intersection by the Missouri Pacific Railroad tracks, across the tracks then east to the factory gate. That railroad crossing was protected by an automatic arm, bell and light device.

Kenneth M. Hunt, claimants' decedent, had been an Allis-Chalmers salaried hourly employee for three years prior to his death. As such, his contract of employment did not include any provision or allowance for transportation to and from work. His pay period did not commence until he had timed in at the department to which he was currently assigned. For some time prior to February 16, 1966, Mr. Hunt had used the Stove Company parking lot. A fellow employee, Donald V. Ham, saw decedent park his car in that lot about four of the five days each week. In fact, they often parked side by side and on occasion walked together across the tracks to work along the path previously described. On the day of...

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