Sonnenberg v. Berg's Market et al.

• Decision Date: 20 December 1932
• Docket Number: No. 22422.,22422.
• Citation: 55 S.W.2d 494
• Parties: FRANK J. SONNENBERG (EMPLOYEE), RESPONDENT, v. BERG'S MARKET (EMPLOYER), AND EMPLOYERS' MUTUAL CASUALTY COMPANY (INSURER), APPELLANTS.
• Court: Missouri Court of Appeals

55 S.W.2d 494

FRANK J. SONNENBERG (EMPLOYEE), RESPONDENT, v. BERG'S MARKET (EMPLOYER), AND EMPLOYERS' MUTUAL CASUALTY COMPANY (INSURER), APPELLANTS.

No. 22422.

St. Louis Court of Appeals. Missouri.

Opinion filed December 20, 1932.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Robert W. Hall, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb for appellants.

The claimant in this cause was a casual employee, and, therefore, not within the provisions of the Workmen's Compensation Act. R.S. 1929, sec. 3303; Ray v. Commercial Acid Co., 227 S.W. 851 (Mo. App.); Carrigan v. Western Radio Co., 44 S.W. (2d) 245 (K.C. App.); Barlow v. Shawnee Investment Co., 48 S.W. (2d) 35, l.c. 45; Re Gaynor, 104 N.E. 339 (Mass.); Aurora Brewing Co. v. Industrial Board, 115 N.E. 207 (Ill.); Herbig v. Walton Auto Co., 182 N.W. 204 (Iowa); Diamond Livery Co. v. Industrial Comm., 124 N.E. 609 (Ill.); Bridger v. Lincoln Feed & Fuel Co., 179 N.W. 1020 (Neb.); Smith v. Industrial Comm., 132 N.E. 470 (Ill.); In re Cheevers, 106 N.E. 861 (Mass.); Cosineau v. Black, 173 N.W. 203 (Mich.); Pooler's Case, 118 Atl. 590 (Me.).

Al. J. Stack for respondent.

(1) The employment of claimant by the employer herein does not come within the classification of "employments which are but casual." Sabella v. Brazileiro, 86 N.J.L. 505, 91 Atl. 1032; Mullen v. Walker et al., 105 N.J.L. 199, 143 Atl. 363; Forrester v. Eckerson, 107 N.J.L. 156, 151 Atl. 639; Flynn v. Carson et al., 42 Idaho, 141, 243 Pac. 818; Pfister v. Doon Electric Co., 199 Iowa, 548, 202 N.W. 371; Elliott Workmen's Compensation Act, (6 Ed.) p. 277. (a) The burden is on the employer to show casual employment. Claimants have only to show employment and injury. Vol. 1, Schneider's Workmen's Compensation Act, p. 253, and 2 Schneider's Workmen's Compensation Act, p. 1868; Borlow v. Shawnee Investment Co., 48 S.W. (2d) 35 (K.C. App.). (b) Length of service does not determine whether or not servant is a "casual employee." Corrigan v. Western Radio Co. et al., 44 S.W. (2d) 245, l.c. 248 (K.C. App.). (2) The question of casual employment is a question of fact and the findings and award of the Workmen's Compensation Commission have the force and effect of the verdict of a jury. Caldwell et al. v. J.A. Kreis & Sons et al., 50 S.W. (2d) 725 (Mo. App.); Barlow v. Shawnee Inv. Co., 44 S.W. (2d) 35 (K.C. App.); State ex rel. Brewen-Clark Syrup Co. v. Mo. Workm. Comp. Comm., 8 S.W. (2d) 897 (Mo. Sup.); Hager v. Pulitzer Publishing Co., 17 S.W. (2d) 578 (Mo. App.); Kinder v. Hannibal Car Wheel Fndy. Co., 18 S.W. (2d) 91 (Mo. App.); Cotter v. Valentine Coal Co., 14 S.W. (2d) 660 (K.C. App.).

SUTTON, C.

This is an action for compensation under the Workmen's Compensation Act (Chapter 28, R.S. Mo. 1929), for an injury received by plaintiff while in the employ of defendant Berg's Market, insured under the provisions of the act by defendant Employers' Mutual Casualty Company. The Commission awarded plaintiff compensation. From the judgment of the circuit court affirming the award, defendants have appealed to this court.

Defendants insist here that the court erred as a matter of law in affirming the Commission's award, because upon the facts disclosed by this record the plaintiff was but a casual employee and therefore not within the compensation act.

The defendants rely on the third clause of section 3303 of the act, exempting from the operation of the act, "employments which are but casual, or not incidental to the operation of the usual business of the employer."

Plaintiff testified before the Commission as follows: "I was employed by Berg's Market on March 28, 1931. Before that time I had been working for Berg's Market only occasionally on Saturdays. They always employed about four additional men for Saturday and they called up the local union and they sent the men down. They worked six days a week at Berg's Market. They had three meat cutters every day, and on Saturday additional men — every Saturday. I worked all day Saturday. I drew for that work $8.50 for each day. They had a grocery store, and sold fruits, vegetables, and groceries. That place is located at 2701 North Fourteenth Street, St. Louis. They also had a market on Easton Avenue off Sarah, and one on Sixth Street near the Union Market. They employed a lot of help in both those places. They had a good many more than ten employees all over. On the 28th day of March I was splitting pigs feet, and the cleaver, instead of going into the foot, glanced off and hit the index finger on my left hand, and cut it open down to the joint."

Counsel agree, as they ought, that the clause of the act under review, being in the disjunctive, excludes from the operation of the act two classes of employments, to-wit, (1) employments which are but casual, and (2) employments which are not incidental to the operation of the usual business of the employer. Nor is it contended that the employment in which the employee here was engaged at the time he was injured was not incidental to the operation of the usual business of the employer. The sole question for determination is: Was or was not the employment but casual? The lexical meaning of the word "casual" is as follows: Happening or coming to pass without design, and without being foreseen or expected; accidental; fortuitous; coming by chance; coming without regularity; occasional; incidental. This is the ordinary meaning of the word, and is evidently the sense in which it is used in the act. It is a mistake to suppose, however, that the word, as used in the act, refers to the employing of the particular employee. For this is not so. The word, as used in the act, refers to the employment, or work, the employee is engaged to do. It is the employment, not the employing of the particular employee, that is determinative. The question is not whether or not the employing of the particular employee was casual, but the question is whether or not the employment, or work, was casual. Under this view of the act, it is obvious that the plaintiff here was not engaged in a casual employment at the time he was injured. The operation of the employer's business required the employing of extra meat cutters on every Saturday. This was because of the extra work required to be done on Saturdays. This extra work was regular and recurrent. It came with regularity every Saturday. It was not unforseen or unexpected, accidental or fortuitous.

This view accords with the manifest spirit and purpose of the compensation act. It also accords with the better reasoned decisions of the courts of other states construing provisions in their compensation acts like the provision of our own act here under review.

In Flynn v. Carson. 42 Idaho, 141, 243 Pac. 818, the facts were...