Norris v. Koenig
| Decision Date | 06 November 1944 |
| Docket Number | No. 20532.,20532. |
| Citation | 183 S.W.2d 160 |
| Parties | NORRIS v. KOENIG et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.
Proceeding under the Workmen's Compensation Act by Harrison Norris, claimant, opposed by F. W. Koenig, employer, and the Hardware Mutual Casualty Company, insurer. From a judgment affirming an award of compensation by the Workmen's Compensation Commission, the employer and insurer appeal.
Affirmed.
Montgomery, Martin & Salveter and W. M. Ilgenfritz, all of Sedalia, for appellants.
Frank T. Armstrong, of Sedalia, for respondent.
BOYER, Commissioner.
This is an appeal from a judgment of the Circuit Court of Pettis County, Missouri, affirming an award of the Missouri Workmen's Compensation Commission. Harrison Norris was the emyployee, F. W. Koenig was the employer, and Hardware Mutual Casualty Company was the employer's insurer. Claimant was injured on Sunday, October 21, 1942.
Mr. Koenig had been engaged solely in the bottling business and the manufacture of carbonated beverages in the City of Sedalia for twenty-three years and was operating under the provisions of the Workmen's Compensation Law. On the premises of the bottling plant, adjacent to the plant building, was a separate structure owned by the employer which he had built or repaired and he decided to place a concrete floor in said building which was to be used for the storage of trucks and cases and as a general warehouse. This separate structure is referred to by respondent, and in some of the evidence, as a new building on employer's premises. The employer arranged with one Roosevelt Carpenter, an experienced concrete worker and finisher, to lay the concrete floor in the building in question and authorized him to procure the additional help required. A portion of the floor had been laid prior to the date of claimant's injury. The work was being done on Saturdays and Sundays at convenient times when Carpenter could obtain the help required. Carpenter and the other men assisting in this work were regularly employed elsewhere, most of them in the Katy shops at Sedalia, but were at leisure on Saturdays and Sundays.
On the day in question, October 21, 1942, Carpenter arranged with Koenig to lay one more section of the concrete floor and informed the employer that additional help would be necessary. The employer authorized him to obtain it. Carpenter and two of his helpers got in his car and started out with the intention of finding a certain man whom Carpenter had in mind, but on the way they met Harrison Norris on the street, and according to the testimony of Norris, Carpenter asked him if he wanted to work a "little while" and Norris replied: "I don't mind helping awhile." He was taken in the car and the men returned to the building in question and the operation of laying an additional section of the concrete floor began. The employer purchased or obtained all the material, and he or Carpenter had obtained the use of a concrete mixer from the owner thereof. Claimant was one of three men who were to operate wheelbarrows carrying the concrete mixture from the mixer to the point where it was to be laid in the floor. Carpenter was to do the finishing work inside the building. Claimant had been at work a little over an hour when he was injured. He said while he was attempting to pull a wheelbarrow back from the mixer it struck a rock causing the wheelbarrow to turn over, the handle of which struck claimant's right leg and dislocated his knee. He was unable to continue work, and some of his associates took him to the doctor. Neither claimant nor any of the other cement workers had ever at any time been employed as workers in the bottling plant, and the plant was not in operation at any time when any of the concrete work was being done.
The employee duly filed his claim for compensation with the Workmen's Compensation Commission. It was heard before a referee who made an award for partial permanent disability and for medical aid in a total amount of $582. On application this award was reviewed by the full Commission, and the Commission affirmed the award of the referee. Upon notice the employer and insurer appealed to the Circuit Court which affirmed the award. Appellants made timely appeal to this court, and here contend "that the respondent was a casual employee and that the employment was not incidental to the usual operation of the business of the employer and, therefore, the benefits of the act are not available to respondent."
This case does not fall under the provisions of Sec. 3698, R.S.Mo. 1939, Mo.R.S.A. Appellants rely upon the third paragraph of Sec. 3693, R.S.Mo. 1939, Mo.R.S.A., for the exclusion of claimant from the benefits of the workmen's compensation law. The section reads in part: "Sections 3690, 3691 and 3692 of this chapter shall not apply to any of the following employments: * * * Third: Employments which are but casual or not incidental to the operation of the usual business of the employer." By the terms of the above quoted paragraph it has been determined that two classes of employment are excluded; those in which the employment is but casual, and those which are not incidental to the usual business of the employer. Schneider's Workmen's Compensation, Vol. 2, sec. 303, p. 143; Carrigan v. Western Radio Co., 226 Mo.App. 468, 44 S.W.2d 245; Sonnenberg v. Berg's Market, 227 Mo.App. 391, loc. cit. 393, 55 S.W.2d 494.
It is first urged by appellants that the employment of respondent was not incidental to the usual business of the employer. Reliance is placed upon the statute, and Pitts v. Maupin, 230 Mo.App. 221, 88 S.W.2d 384; Cummings v. Union Quarry & Construction Co., 231 Mo.App. 1224, 87 S.W.2d 1039; and some foreign cases. The authorities cited are not in point, persuasive or conclusive in any sense upon the question presented. Under the admitted and uncontroverted facts in this case the employment in which claimant was engaged pertained to the preparation of a building for storage purposes and for use in the operation of the employer's usual business. The employer admitted the uses and purposes for which the building was being prepared, and testified that the concrete floor which was being laid was easier to work on, enhanced the value of the property, and made a better plant. It is our view that the only reasonable conclusion upon this point is that the work in which claimant was engaged was incidental to the operation of the usual business of the employer. We think also that such ruling is required by the principles announced and the decisions made in the following cases: McKay v. Delico Meat Products Co., ...
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...and yet regular. Men may be regularly but not continuously employed.' McDonald v. Seay, 62 Ga.App. 519, 8 S.E.2d 796, 797, Norris v. Koenig, Mo.App., 183 S.W.2d 160. For example, in Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d 494, 495, four additional butchers were 'casual' and ......
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