Kunce v. Junge Baking Co.

Decision Date03 October 1968
Docket NumberNo. 8788,8788
Citation432 S.W.2d 602
PartiesClester T. KUNCE, Appellant, v. JUNGE BAKING COMPANY and Liberty Mutual Insurance Company, Respondents.
CourtMissouri Court of Appeals

Richard M. Webster of Myers, Webster & Perry, Webb City, for appellant.

Herbert Van Fleet, of Blanchard, Van Fleet & Robertson, Joplin, for respondents.

TITUS, Judge.

Clester T. Kunce, a worker for twenty years at the Junge Baking Company in Joplin, Missouri, fell and was injuried when his feet became entangled in a wire hoop during the course of an off-the-premises break within the paid hours of his employment. Thereafter he successively secured favorable awards from The Division of Workmen's Compensation and The Industrial Commission of Missouri, 1 but now appeals from the judgment of the Circuit Court of Jasper County which reversed the final award. Except for exhibits of medical bills, physicians' reports and a photograph of the accident scene, the evidence is wholly composed of the employee's testimony.

The bakery building is bounded on the east by Main Street and on the west by a 'black-topped' alley, both north-south public trafficways. The rear or west wall of the structure is contiguous with the east alley line save for a small section at the north end which is recessed (about three feet by our estimate) away from or east of the alley. This indented area, described as 'being the property of Junge Baking Company' and 'wide enough that you can walk on it real good,' is the accident site, and consists of a 'cement runway' or single lane driveway extending eastward from the alley into the 'old company garage.' This portion of the bakery, as we understand, is no longer used as a garage but either houses an oven or affords access to one. The driveway is situate about fifty feet north of the southwest corner of the building. The garage-type door at the runway does not serve as an employees' entrance into the bakery, it was closed at the time of the accident, and claimant had no intention of using it as a way or path into the building when he fell.

A loading dock extending east from the alley runs across the south side of the bakery, and a doorway in the south wall of the building leads from the dock into the shipping room where Mr. Kunce was employed. As he did on the date of the accident, claimant usually drove his personal automobile to work and parked it south of and off bakery property. To gain the shipping room, Mr. Kunce walked north in the alley to the southwest corner of the building, where he turned east to travel upon the loading dock to the south doorway and thence north into the building. This route was followed in reverse when the employee departed for home at the end of a shift.

Two buildings adjacent to and north of the bakery separate it from 18th Street, the first east-west thoroughfare north thereof. To the west or rear of these buildings and east of the alley is a graveled parking section used by persons not associated with the bakery. The 'cement runway' extending from the alley into the 'old company garage,' supra, is located just south of the southwest corner of the graveled parking area.

Claimant's specific job was to assist in removing wrapped bread from the end of a conveyor belt in the shipping room, place it into trays, and stack the trays for convenient placement onto trucks off the loading dock. On the accident date, Sunday, December 19, 1965, Mr. Kunce arrived at the bakery at 4 a.m. intending to work a continuous 9 or 9 1/2 hour shift. His co-workers that day were Messrs. Hewitt, Moon and Noble, the latter being denominated as 'our relief man.' The relief man arrived an hour after the others, 'and the duties of Mr. Noble is to relieve us three men (in turns), and then he takes a break.'

It is 'the company policy' that once an employee checks in for work at the beginning of a shift, he remains continuously 'on the clock' or on company time 'and we don't punch out until time to go home' at the end of the shift. Bakery employees do not check out for lunch or breaks for other purposes, they are not limited as to what they may do or where they may go during a break, and the only restriction as to time taken for a break is that it be reasonable. 'If you wanted to * * * you could go home and get something, or go home and get a cup of coffee, or do whatever you wanted to do (on a break), so long as you just spent a reasonable time.' For illustration, Mr. Kunce recounted occasions prior to the accident when, on his breaks, he left the bakery to go to a particular hardware store to make personal purchasers or to Mays Drug Store to buy cigarettes. A canteen or coffee bar, equipped with a cigarette machine, was provided on bakery premises but, at least on the day of the accident, 'they didn't have Chesterfield cigarets * * * and I smoke Chesterfield cigarets.'

Before the fateful break occurred near 10 a.m., Mr. Kunce had taken other breaks without leaving the bakery premises. Regarding the 10 o'clock break the claimant testified: 'I was out of cigarets * * * I first went to the restroom and then I went out to buy me two packages of cigarets.' It was entirely Mr. Kunce's decision to undertake this excursion, no one at the bakery directed or requested it, and apparently only Mr. Kunce was aware of where he was going or what he intended to do. He departed the bakery via the south door, turned west onto the loading dock, and followed it into the alley where he walked north to 18th Street. There he traveled east to Main and then north two blocks to 16th and Main, where he entered Mays Drug Store and purchased two packages of cigarettes and two packages of tinsel for 'a Christmas tree at home.' En route back to work, Mr. Kunce went south on Main and turned west at 18th Street, cuting across the graveled parking area to the alley. Although there is no evidence any traffic was in the alley, 'for safety reasons' claimant walked southward close to the building line and onto the 'cement runway.' It was while he was on or traversing the runway that Mr. Kunce fell and was injured after having been tripped by the hoop. Upon regaining his feet, claimant resumed his intended route, and entered the bakery by the south door to report the occurrence before departing for home and the hospital. The origin and ownership of the hoop is not known.

The 'Findings of Fact and Rulings of Law,' expressed by the referee in conjunction with his award, noted, 'All the evidence * * * prove(s) that the accident occurred on premises owned * * * by the employer. In my view, this is a typical 'going to and from work' case * * *. I further find that at the time of the accident the employee * * * had been become a break which by practice had become a 'fixture' of the employment.' Bolstered by such findings, his conclusion the accident arose out of and in the course of employment was inescapable. Being in agreement with the referee's award and obviously feeling its form satisfied the requirements of V.A.M.S. § 286.090, the Industrial Commission upon review simply affirmed and adopted that decision. In explanation of its judgment, the circuit court in a memorandum opinion stated, inter alia: '* * * the employee was on a mission solely of his own choosing (that) had no connection with his employment. * * * Although he was on the employer's premises when the accident happened, his presence (thereon) was not incident to his employment and was not necessary to any phase of his employment. That is, entering or leaving the plant. The mere fact that employee was on the employer's premises does not entitle him to an award. His presence must be necessary or incidental to his employment. * * * The Court * * * finds that the award * * * is not supported by the law and the evidence and the award is reversed and judgment entered for the employer.'

Claimant urges the circuit court erred in denying compensation because (1) 'the act of entering or leaving the place of employment is incidental to employment and the test as to whether or not the act is within the scope of employment is whether or not the employee was actually on the premises,' and (2) a 'rest or recreation break, when approved by the employer, is incidental to employment.' We fear this is an oversimplification of the actual issues involved, for accidental injuries incurred by employees during working hours or periods for which they are compensated are not compensable merely because they occur on premises owned by or under the control of their employers. 2 It is only such injuries as arise both 3 'out of and in the course of employment' that are compensable. 4 (Emphasis is ours.) Mr. Kunce, of course, had the burden of bringing himself within the provisions of the workmen's compensation act, 5 which includes the burden of proving his injuries resulted from an accident 'arising out of and in the course of his employment.' Leone v. American Can Company, Mo.App., 413 S.W.2d 558, 561(1). The facts here are not in dispute. Therefore, whether the claimant's injuries arose out of and in the course of employment is a question of law 6 'and the Commission's determination thereof is not binding on the reviewing court.' Lawson v. Lawson, Mo.App., 415 S.W.2d 313, 316(3).

Hazards encountered by employees while going to and from work are not, as a general rule, considered incidental to their employment, and injuries resulting from such hazards are not compensable because they do not arise out of and in the course of their employment. Downs v. Durbin Corporation, Mo.App., 416 S.W.2d 242, 246(5). However, this rule, as it is with all, has exceptions, one of which pertains to employees going to and from work upon the employer's premises. Garrison v. United States Catridge Co., Mo.App., 197 S.W.2d 675, 676(1); 1 Larson's Workmen's Compensation Law, § 15.11, pp. 195--197. It is reasoned the benefits of The Workmen's Compensation Law should not be limited to injuries which result while the ...

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