Thomas v. The Proctor & Gamble Manufacturing Company

• Decision Date: 08 March 1919
• Docket Number: 21,995
• Citation: 104 Kan. 432,179 P. 372
• Court: Kansas Supreme Court
• Parties: DAISY THOMAS, a Minor, by Her Next Friend, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

179 P. 372

104 Kan. 432

DAISY THOMAS, a Minor, by Her Next Friend, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

No. 21,995

Supreme Court of Kansas

March 8, 1919

Decided January, 1919.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Employee Injured During Noon Intermission--Liability of Employer. In an action under the workmen's compensation law there was evidence that the plaintiff, a seventeen-year-old girl, who was paid by the hour, was injured during a half-hour intermission at noon while, although at liberty to leave the premises, she remained there, and after eating her lunch engaged with fellow employees in accordance with a custom known to and approved by her employer, in riding on a truck, her injury being caused by falling from the truck while it was being drawn by a fellow employee; held, that a finding was justified that the accident occurred in the course of her employment.

2. SAME--Evidence--Findings. It is further held that the evidence stated was sufficient to support a finding that the plaintiff's injury arose out of her employment.

J. K. Cubbison, and William G. Holt, both of Kansas City, for the appellant.

Arthur J. Stanley, and Guy E. Stanley, both of Kansas City, for the appellee.

OPINION

MASON, J.:

Daisy Thomas, an employee of the Proctor & Gamble Manufacturing Company, about 17 years of age, recovered a judgment against her employer under the workmen's compensation law, and the defendant appeals.

The principal question involved is whether the plaintiff's injury was one arising out of and in the course of her employment. A suggestion is made that it did not result from accident, but the occurrence relied upon seems clearly to fall within the definition of that term. The evidence in behalf of the plaintiff tended to show these facts: She had been working for the defendant a little over five months. Her hours were from 7 to 12 and from 12:30 to 5:30, except on Saturdays, when she did not work in the afternoon. She was paid by the hour. Her custom was to take her lunch with her and eat during the interval between noon and 12:30, which was allowed for that purpose, in the room where she worked, with the other girls in her department, seven or eight in number. The eating of lunch generally occupied about fifteen minutes. In the remaining fifteen minutes the girls, including the plaintiff, were in the habit of amusing themselves by riding on a small truck used in their department to pull boxes on. The girls had asked the foreman of this department if they could do this, and he had told them they could, but to be careful, and that he didn't want any men up there. He knew of the practice and did not object to it; nor did any other representative of the company. During the noon half hour the girls were at liberty to go where they pleased. They hardly ever went down to the restaurants, however, because of the shortness of the time; if they did so they had to run in order to be back by 12:30. On the day of the accident one girl was drawing the truck, while the plaintiff with two others were kneeling on it. They had ridden from the powder room, where they worked, into the wareroom, and were near the door between the two on the return trip when in turning a corner the truck slid and one girl jumped off. The other two fell to the floor, the plaintiff receiving injuries to her knee and ankle. This was a few minutes before 12:30.

The evidence for the defendant tended to show these facts: The company had a lawn and recreation ground, about an acre in extent, fenced in with its buildings, and five or six acres outside, including a ball ground, all of which were accessible to the employees when not at work. The defendant had no control over them during the noon intermission. Usually at this time half of the girls went down to a restaurant on or near the factory premises. The work of the girls in the plaintiff's department was putting paper boxes on the powder machine. They had nothing to do with the trucks, which were handled by men. The assistant superintendent had cautioned the plaintiff against using the trucks, telling her that it was against the rules and very dangerous. He knew the girls had ridden on the trucks, and he and other representatives of the company frequently warned them against the practice. The subforeman of the powder room (called the foreman by the plaintiff) had no authority to permit the girls to use the trucks as playthings. All the foremen were instructed to prevent the girls from getting on the trucks.

1. The conflict of evidence as to the attitude of the company toward the girls' practice of playing with the trucks must of course be resolved in favor of the plaintiff. In order for the judgment to be upheld the evidence must have warranted two findings--that the plaintiff was injured in the course of her employment, and that the injury arose out of her employment. The fact that she was working by the hour and that the accident took place out of working hours does not conclusively establish that it did not occur in the course of her employment. The shortness of the intermission suggests that it was the expectation that most of the employees would remain on the premises, and the practice shown by the evidence confirms this. The purpose of the plaintiff and her associates in remaining in the factory after their lunch had been eaten was presumably to be on hand when work commenced, in order that there might be no delay--a matter in which the employer had an obvious interest. Their situation was quite like that of a workman who arrives at the factory and is fully prepared to begin work a few minutes before the whistle blows. In the leading English case on the subject, which has been frequently cited with approval in this country, the scope of the decision was fairly indicated by this language of the headnote:

"A workman was paid by the hour for the number of hours per week that he was actually engaged on his work, not including the mid-day dinner hour. During that hour he was at liberty to stay and take his meal on the premises, or to go elsewhere. He stayed on the premises, and sat down to eat his dinner, and while so doing a wall fell upon him, and he was injured. . . . Held, that during the dinner hour there had been no break in the employment of the workman, and that he was entitled to claim compensation." (Blovelt v. Sawyer, 1 KB 1904, 271.)

In the opinion of the Master of the Rolls the whole situation was gone over in these words:

"On the evidence as it stands on the judge's notes I should have felt no difficulty, because it would appear prima facie to indicate that the man was in his master's employment during the whole of each day, from the time at which he went to his work to the time when he came away, and equally during the dinner hour, if he stayed, as during any other part of the time. He would be there on the contract with his master during all those hours, either directly in order to do that for which he was employed or for some purpose ancillary thereto. That would embrace all his movements within the ambit of the factory, going or coming or stopping there for any purpose ancillary to his work. But we are told that there were admissions made between the parties, which do not appear on the judge's note, that men in the position of the applicant were not paid by the day or week, but the hour, and that the dinner hour was excluded from the computation of his wages, and was not a time during which he was earning pay. That creates a difficulty, or, at all events, requires consideration. It seems to me, however, that if the dinner hour can be brought in as part of the time which is given by the workman for some purpose ancillary to his work, such as feeding himself, which is, of course, essential to enable him to do his work, it would be taking too technical a view to say that the pause in the actual course of his work for the purpose of eating his dinner was a break in his employment from the time that he stopped work to the time at which he began again. It seems to me that, notwithstanding what is alleged as to the payment being for the hours in which the applicant was actually engaged in work and not for the time in which he took his meals, we must take a broader view, and treat him as continuing in the employment of the master by the consent of the master, inasmuch as it is for the master's advantage that the workmen should have an opportunity to feed themselves. A workman would do his work all the better by taking his meal at that time, and if it is part of the contract between him and his master that he may do so upon the works instead of going away, that may be a matter of mutual convenience. A man might, for instance, live at a distance, and it might be desirable, from the master's point of view, that he should not tire himself by going to and fro for his food instead of reserving his strength for his work. It does not seem to me that, as a matter of law, it can be said that, when sitting down to his dinner, the applicant had ceased to be in his master's employment. From the mere facts that he was not paid for this particular time and that he was not engaged in the main purpose of his work it cannot, as a matter of law, be said that he had ceased to be in the employment of his master." (p. 273.)

One of the Lords Justices said:

"It also appears that he was not obliged to leave...