McFarland v. St. Louis Car Co.
| Citation | 262 S.W.2d 344 |
| Decision Date | 17 November 1953 |
| Docket Number | No. 28687,28687 |
| Parties | McFARLAND v. ST. LOUIS CAR CO. |
| Court | Court of Appeal of Missouri (US) |
Correnti, McKee, Rosenblum, Fitzgibbon & Goldenhersh, and Robert S. Goldenhersh, St. Louis, for appellant.
Albert I. Graff, and Malcolm I. Frank, St. Louis, for respondent.
This is a proceeding under the Missouri Workmen's Compensation Law. Section 287.010 et seq. RSMo 1949, V.A.M.S. Jasper F. McFarland, Jr., the claimant-employee, has appealed from the judgment of the circuit court affirming the award of the Industrial Commission which denied his claim for compensation.
On June 17, 1949, the claimant received an injury to his left foot which resulted from an accident that occurred while he was participating as a player upon a softball team composed of employees of the St. Louis Car Company (respondent). The award of the referee was in favor of the employee, but, as already indicated, it was reversed upon review by the Industrial Commission.
The principal point briefed is whether the accident and resulting injury arose 'out of and in the course of' McFarland's employment, as required by the provisions of Section 287.120, subd. 1 RSMo 1949, V.A.M.S. In view of the conclusion we have reached, this is the only issue we need to determine. Consequently, this opinion will not be burdened by a recital of the facts concerning the extent of claimant's disability, about which there was considerable conflict in the evidence. There is no disagreement indicated by the record or the briefs as to the facts dealing with the issue we will decide upon this appeal.
In May, 1947, a group of employees of the St. Louis Car Company decided they would organize a softball team. After investigating several leagues in which the team might compete it was decided that they would attempt to join the Y. M. C. A. Industrial League. The rules of this league required that the entrance fee of $50 be paid by the employer, and that all players must be employees of the company. John Ewersman, chosen as spokesman for the group, conferred with Mr. Meisner, Executive Vice-President of the company, and asked that the company pay the entrance fee. After some consideration, Mr. Meisner agreed that the company would make the payment and, thereafter, it also paid for some balls, bats and other equipment, including jerseys to be worn by the players. The name 'St. Louis Car' appeared on the front of these jerseys.
The team was accepted by the Industrial League and competed therein during the years 1947, 1948, and 1949. It disbanded in 1950 because of a lack of players. During the years indicated the company continued to render financial assistance, expending about $200 each year for that purpose. Upon the company records these expenditures were charged to general expense, and not to advertising.
McFarland did not play upon the team until May, 1949. He was invited by Ewersman, the team coach, to become the catcher, and consented to do so. The injury to claimant occurred in the fifth or sixth game in which he had participated. The team practiced and played its games after work hours. Practice sessions were held at O'Fallon Park, and the games were usually played at Fairgrounds Park, both of which were public parks. The players furnished their own transportation to these parks. It is indicated that a few of the players would play catch upon the grounds of the employer during the lunch hour. The game in which claimant was injured was played upon the grounds of the American Fixture Company because the game had been postponed on account of rain, and the public park was not available on that date.
Claimant testified that he was employed as a press brake operator; that he received no pay for playing ball; that playing on the team was purely voluntary and no official of the company had ever talked with him about playing; that he received no concession for playing, and that if he didn't play it would not have cost him his job; that there was no admission charge to the games; that the manager and coach (fellow employees) had arranged the schedule of games; that about 30 or 40 company employees attended each game; and that publicity concerning the team and games played was given in the monthly newspaper published by the company.
Our task, as previously indicated, is to determine whether the injury to the employee resulted from an accident arising out of and in the course of his employment. This is ordinarily considered a mixed question of law and fact; but where, as in this case, there is no dispute about the facts, the question becomes one of law only. Every case involving this problem must be decided upon its own particular facts and circumstances, and not by reference to some exact formula. Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142, 233 S.W.2d 725. In approaching this problem we must bear in mind the rule that the compensation law must be liberally construed with a view to the public welfare, and that doubt as to the right of compensation is to be resolved in favor of the employee. But the cases also say that we are not authorized by this rule to allow a claim which lacks some of the essential elements required by the Act. Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244. It has been said that, McNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306.
It is agreed that this is a case of first impression in Missouri under the precise facts detailed. We have considered a number of Missouri cases which, by analogy, shed light upon some phase of the controversy. In our effort to formulate and adopt the proper rule to be applied to recreational cases of this nature we have also considered many similar cases decided by the courts of other states, the more pertinent ones being hereinafter cited and discussed.
Claimant strongly relies upon the case of Conklin v. Kansas City Public Service Co., 226 Mo.App. 309, 41 S.W.2d 608, as indicating the trend of the decisions of this state in recreational cases. In that case it was held that the injury arose from activity that had become an incident to the employment when the employee sustained an injury upon being struck by a baseball bat while a spectator at a game. It appeared that for four years the employees had played indoor baseball in one of the employer's buildings during the lunch hour. Only employees played in and attended the games, and this activity was encouraged by the employer, as indicated by the fact that on one occasion a special game was played and all employees were paid full wages during their period of attendance. The Court held that since the injury arose out of a settled practice known to the employer, with which there was a causal relation between the injury and employment, the injury was compensable. While this case lends some support to the claimant's position, it can readily be seen that it is factually different from the case at bar and is not controlling here. Indeed, the Kansas City Court of Appeals recognized that it represented the extreme limit in the construction of the statute when it subsequently said: 'In the opinion of the court, the opinion in the Conklin Case while sound and within the scope of the provisions for compensation, still to go further than in that case would be error.' Dunnaway v. Stone & Webster Engineering Corp., 227 Mo.App. 1211, 61 S.W.2d 398, 400.
In the Dunnaway case the...
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