Reneau v. Bales Elec. Co.

• Decision Date: 10 June 1957
• Docket Number: No. 45584,No. 2,45584,2
• Citation: 303 S.W.2d 75
• Parties: Vinita Daniels RENEAU, Sally Daniels, Shirley Daniels, Sharon Daniels, and Henry Daniels, Respondents, v. BALES ELECTRIC COMPANY, Employer, and Manufacturers Casualty Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

Page 75

303 S.W.2d 75

Vinita Daniels RENEAU, Sally Daniels, Shirley Daniels Sharon Daniels, and Henry Daniels, Respondents, v. BALES ELECTRIC COMPANY, Employer, and Manufacturers Casualty Insurance Company, Insurer, Appellants.

No. 45584.

Supreme Court of Missouri, Division No. 2.

June 10, 1957.

Robert S. McKenzie, Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellants.

David H. Clark, Kansas City, Thomas G. Woosley, Versailles, for respondents, Sebree, Shook, Hardy & Ottman, Kansas City, of counsel.

BARRETT, Commissioner.

The Bales Electric Company of Pittsburg, Kansas, had the contract for the electrical work at the Sedalia Air Force Base three miles south of Knobnoster in Johnson County, Missouri. The company entered into a contract with Local Union 124 of Kansas City, International Brotherhood of Electrical Workers, in which the union agreed to furnish the company all necessary electrical workers. One of the electrical workers furnished was Harry M. Daniels who lived at Versailles, Morgan County, Missouri, seventy miles from the job site. Harry traveled to and from work on a motorcycle, and on June 19, 1953, at approximately seven o'clock in the morning was on his way to work when his motorcycle was involved in a collision with an automobile. The collision occurred near Stover in Morgan County, nine miles from Versailles and fifty-eight miles from the job site. Harry died as the result of injuries received in the collision and his wife, Vinita, and their four minor children, Sally, aged nine years, Shirley, aged seven years, Sharon, aged six years, and Henry, aged five years, filed a claim for the death benefits provided by the Workmen's Compensation Law. V.A.M.S. Sec. 287.240. Bales Electric Company, Harry's employer, and Harry, as Bales' employee, admittedly were operating under and subject to the provisions of the Missouri Workmen's Compensation Act. Because the accident and Harry's resulting death occurred while he was on his way to work the company and its insurer denied all liability for the claim. The claim was submitted to a referee of the Division of Workmen's Compensation and to the Industrial Commission upon review on an agreed statement of facts. Under the agreed facts the referee and the commission found that Harry sustained an accident and died as the result of an accident arising out of and in the course of his employment and accordingly made an award of $400 reimbursing the widow, Vinita, for burial expenses, and an award of $12,000 for death benefits, $30 a week payable for 400 weeks.

The company and its insurer have appealed from a judgment of the Circuit Court of Morgan County affirming the award and insist here, as they did before the commission and the circuit court, that the accident did not arise out of and in the course of the employment and if it did that the commission, even though Vinita was again married on August 6, 1955, erroneously awarded all of the death benefits to the four minor children, thus depriving the company and its insurer of their right to subrogation in $4,400 which Vinita recovered against Elroy Young for Harry's wrongful death. It is also claimed that the commission was in error in reimbursing Vinita for the $400 burial expense, but the appellants have not seen fit to brief this question, hence they are deemed to have abandoned it and only the two questions will be considered. Petty v. Kansas City Public Service Co., 355 Mo. 824, 198 S.W.2d 684.

Obviously, the defense that the claim was in no event compensable is based upon the fact that the accident and resulting death occurred while the employee was on his way to work and therefore falls within the general rule that injuries sustained in going to and from work do not arise out of and in the course of the employment within the meaning of the Workmen's Compensation Law. Annotation 87 A.L.R. 250. It is also urged that the circumstances of this claim do not fall within any of the recognized exceptions to this general rule. Harry was paid an hourly wage of $2.80 and his regular working hours were 8:00 a. m. to 4:30 p. m., less one half hour for lunch, and so the accident and death did not occur during regular working hours and was not covered by that part of the union contract which provided that the employer should furnish transportation from 'shop to job, job to job * * * during regular working hours.' But in this case the union contract with the employer contained this provision: 'It is mutually agreed that a traveling expense of $3.00 per day shall be paid on all work performed at the Sedalia Air Force Base project, missouri, which is approximately seventy miles from Kansas City, Missouri. This is to be paid in lieu of any traveling or mileage or any other expense in connection with the Sedalia Air Base project * * *.' And in accordance with this provision it was stipulated that in addition to his hourly wage Harry was paid $3.00 per day travel expenses as were all union employees on this project regardless of the distance the employee lived from the job site. There is no objection to the fact that Harry was riding a motorcycle or that he furnished it (annotations 85 A.L.R. 978; 96 A.L.R. 467); the objection and claim is that the employer was obligated in any event to pay the $3.00 wherever the employee lived and had no right to choose the method of transportation, in short, had no control over or right to control the means of transportation. It is urged here that 'the employer bargained away his responsibility by increasing the employee's wages by payment of an additional $3.00 per day,' and having no control over the expenditure was not responsible for the hazard of highway travel.

The difficulty with the appellants' argument is that the plain implication of the cases upon which they rely is directly contrary to their position here. In Voehl v. Indemnity Insurance Co., 288 U.S. 162, 53 S.Ct. 380, 382, 77 L.Ed. 676, the employee of an electrical supply company was paid an hourly wage 'with an allowance for his transportation,' five cents a mile and 75 cents an hour from the time he left home for working on Sundays. There is the distinction of the hourly wage from the time the employee left home, but Chief Justice Hughes pointed out that the agreement between the parties modified the general rule of nonliability for injuries sustained while traveling to and from work and caused the service to begin earlier and elsewhere than at the job site and during regular hours. The important thing is that when there is such an agreement 'the hazards of the journey may properly be regarded as hazards of the service and hence within the purview of the Compensation Act.' See also in this latter connection the opinion of Mr. Justice Cardozo in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181. In any event, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 809, 91 L.Ed. 1028, involved an electrician who lived in the District of Columbia and was employed under a union contract by E. C. Ernst, Inc., at the Quantico Marine Base. There employees who were paid $2.00 a day in lieu of the employer's furnishing transportation formed a 'car pool.' The employee, Cardillo, was killed when a passing truck flipped a large rock through the windshield and it was held that a claim for his death was compensable. The contract provided that transportation should be furnished for all work outside the District of Columbia and the court held that the employer performed that part of his obligation by paying the $2 daily transportation cost, but the court said, 'In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed.' The appellants point to the fact that this case and Ward v. Cardillo, 77 U.S.App.D.C. 343, 135 F.2d 260, 262, in applying the Voehl case, recognize four exceptions to the general rule of nonliability for injuries sustained en route to and from work and urge that this case does not fall with any of the exceptions, particularly exception two 'where the employer contracts to and does furnish transportation to and from work.' It is in this connection that emphasis is placed upon the employer's lack of control of the means of transportation and Daniels' election to use a motorcycle.

But, Pribyl v. Standard Electric Co., 246 Iowa 333, 67 N.W.2d 438, 440, also relied upon by the appellants, was an electrical union contract which provided that the employer should furnish transportation. Instead of furnishing transportation, however, the employer and the union agreed that employees 'would receive 8 cents a mile for the 54-mile's round trip in lieu of being actually transported by the employer in vehicles provided by him for that purpose.' An...