Sylcox v. National Lead Co.

• Decision Date: 05 May 1931
• Docket Number: No. 21166.,21166.
• Parties: ROY SYLCOX, RESPONDENT, v. NATIONAL LEAD COMPANY, A CORPORATION, AND JOHN KEENEY, APPELLANTS.
• Court: Missouri Court of Appeals

38 S.W.2d 497

ROY SYLCOX, RESPONDENT, v. NATIONAL LEAD COMPANY, A CORPORATION, AND JOHN KEENEY, APPELLANTS.

No. 21166.

St. Louis Court of Appeals. Missouri.

Opinion filed May 5, 1931.

Appeal from Circuit Court of the City of St. Louis, — Hon. O'Neil Ryan, Judge.

REVERSED AS TO NATIONAL LEAD COMPANY.

AFFIRMED AS TO JOHN KEENEY.

Holland, Lashly & Donnell for appellants.

R.T. Brownrigg, and Mason, Goodman & Flynn, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on January 7, 1927, when he was thrown to the pavement while in the act of alighting from a bus. It is enough to say by way of identification of the parties to the action that plaintiff was in the employ of defendant National Lead Company, which, as its name implies, is a corporation engaged in the business of mining lead; that such defendant owned the bus in which plaintiff was riding, having provided it for the purpose of transporting its employees from the mines to their homes; and that defendant John Keeney, who was also in the employ of the corporate defendant, was the driver of the bus. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $3,000. Following the overruling of their motions for a new trial, separate appeals were allowed the defendants to this court, which, by stipulation of counsel, have been consolidated as one cause.

The facts of the case, as they appeared from plaintiff's evidence, and indeed without serious contradiction from defendants' testimony, may be fully gathered from that portion of his amended petition which reads as follows:

"Plaintiff further states that on and prior to the 7th day of January, 1927; he was in the employ of the defendant corporation as a miner, working in one of its shafts located at Pimville, about four miles southeast of Flat River, Missouri.

"Plaintiff further states that on and prior to the said last-named date, he was a resident of Flat River, Missouri, and was employed and paid by said defendant at the rate of $5.55 for each six cars of ore loaded by him, and was also furnished transportation by said defendant as part of the consideration for said work to and from his home at Flat River, Missouri, to the mine; that for said purpose the defendant operated a number of busses... .

"Plaintiff further states that in the course of transporting plaintiff and said defendant corporation's other employees from the mine to their homes, if more than one person desired to alight from the bus at the same point, the bus would be stopped, but that the custom was that if only one person desired to alight at a certain point, the bus would be slowed down to four or five miles per hour at the point desired, and the passenger would be thus discharged from the moving bus.

"Plaintiff further states that on January 7, 1927, having completed his work on the night shift in said defendant's mine at said point, he was being transported to his home at Flat River, about four o'clock in the morning on said defendant's bus driven by the defendant John Keeney, as chauffeur; that he notified the said driver of said bus that he desired to alight at a certain point on the concrete highway along which defendant's bus was traveling, and said bus was slowed down at said point by defendant corporation through its chauffeur in charge of the same to a speed of four or five miles an hour, and, as plaintiff was in the act of stepping out, said defendant, suddenly, negligently, and without warning to the plaintiff, accelerated the speed of said bus while plaintiff was in the act of alighting from the same, and plaintiff was thereby, with great violence, thrown to the concrete pavement, and suffered serious, painful, and permanent injuries ..."

The answer filed by defendant National Lead Company was a general denial, coupled with a plea of contributory negligence, and a further plea that the case was governed by the provisions of the Workmen's Compensation Act.

The answer of defendant John Keeney was identical in all respects with that filed by his codefendant, save for an added feature attacking the right of plaintiff to institute and maintain this action against him.

The separate replies filed by plaintiff were each in the conventional form.

If additional facts in the case, other than those disclosed upon the face of the petition, become material at any stage of the opinion, they will be stated in connection with particular points arising for decision.

The prime insistence of each of the defendants is that the court erred in refusing to give the separate peremptory instructions in the nature of demurrers to the evidence, requested at the close of the entire case. In this connection the contentions of defendant National Lead Company will be first noted, after which the views of defendant Keeney will be considered.

The propriety of the submission of the case to the jury as against defendant National Lead Company turns upon the question of whether the case stated and proved was one within the exclusive purview of the Workmen's Compensation Act. There is no controversy between the parties on this appeal about the fact that the act was in full force and effect for a very considerable period of time prior to the accident, or that plaintiff and his employer, the corporate defendant, were operating under the provisions of the act in so far as the same were applicable. Consequently, the case which is put to us for decision is whether the injury sustained by plaintiff while alighting from a bus furnished by his employer for the use of plaintiff and his fellow employees in being transported to their homes from their work, the accident occurring at a point some four miles distant from the scene of his actual labors, was "by accident arising out of and in the course of his employment," so as to be solely cognizable before the compensation commission under the provisions of section 3301, Revised Statutes 1929.

Defendant National Lead Company argues that inasmuch as plaintiff was in its employ under a contract of hiring which contemplated that the employer would furnish him the free use of a bus for transporting him to the mine from his home and from the mine back to his home, he was in the course of his employment during the entire period of such transportation, and the injury sustained by him while alighting from the bus was, therefore, within the exclusive purview of the act. Plaintiff admits that an injury sustained by an employee while being transported to his home in a bus provided by his employer would ordinarily be by accident arising out of and in the course of his employment, but counters with the idea that the injury would not be compensable under the statute, if it was occasioned by plaintiff's own act in jumping from the bus while going at a high rate of speed, before it had reached his destination (which was defendant's theory of plaintiff's contributory negligence), nor where it was received at a point far distant from the place of employment, during a period for which he was not paid, and at a time when he was rendering no service to his employer.

Cases arising upon facts almost identical with those at issue have frequently been presented to courts of other jurisdictions having compensation acts, and a wealth of law upon the subject has been written. Generally speaking, it is the scope of the contract of employment which furnishes the determinative test of whether such an accident is one for compensation. In other words, it is the contract of employment, and not the actual commencement of labor, which establishes the relationship of the parties under the act. If the right to transportation is given, either positively or inferentially, by the terms of the contract, the employment begins when the employee boards the bus to go to the scene of his labor; it continues throughout the entire period of transportation; and it terminates when he leaves the bus at his home. If the contract provides in express terms for transportation, there is but small room for controversy, but where its provisions are to be implied from the nature and circumstances of the employment, many considerations may be involved, such as whether the furnishing of transportation was merely an act of courtesy, wholly disassociated and disconnected from the relationship of master and servant; whether the employee received pay for the time spent on the bus; whether the furnishing of transportation was with the knowledge and acquiescence of the employer; and whether the course of the employment may extend beyond the hours of the servant's actual labor, and to places other than the premises upon which his labor is performed.

Disposing of these questions, the courts hold almost unanimously that even though the employee is not paid for the time spent on the bus, he is yet in the course of his employment, if he rides by the employer's order, or with his knowledge and acquiescence; that the relationship of master and servant may extend beyond the hours of the servant's actual labor, and to places other than the premises on which he is employed; that the relationship exists whenever the servant is under the master's control, and subject to his directions; that transportation to and from work may well be one of the incidents of the employment, and an accessory, collateral, or subsidiary part of the contract; that it is something added to the principal part of the contract, as a minor, but none the less a real, feature or detail of the contract; and that consequently, an accident, such as the one we have before us, should be regarded as compensable, because it occurs within the period of the employment, at a place where the employee has a right to be, and while he is engaged in something incidental to his employment proper, because contemplated by it.

These conclusions will be found expressed in the following line of cases from other...