Wamhoff v. Wagner Elec. Corp.

• Decision Date: 05 November 1945
• Docket Number: 39629
• Citation: 190 S.W.2d 915,354 Mo. 711
• Parties: Raymond Wamhoff, Employee, v. Wagner Electric Corporation, Employer, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 915

354 Mo. 711

Raymond Wamhoff, Employee, v. Wagner Electric Corporation, Employer, Appellant

No. 39629

Supreme Court of Missouri

November 5, 1945

Rehearing Denied December 3, 1945.

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

Albert I. Graff and Malcolm I. Frank for appellant.

(1) Where an employee departs from his regular employment and does something on another machine for his own personal benefit and not for the benefit of the employer, and is injured while so doing, the accident does not arise out of or in the course of his employment. Kasper v. Liberty Foundry Co., 54 S.W.2d 1002; Miliatio v. Jack Rabbit Candy Co., 54 S.W.2d 779; Cassidy v. Eternit Inc., 326 Mo. 342, 32 S.W.2d 75; Smith v Levis-Zukoski Merc. Co., 223 Mo.App. 743, 14 S.W.2d 470; Bise v. Tarlton, 35 S.W.2d 993; Probst v. St. Louis Basket & Box Co., 52 S.W.2d 501; Smith v. Seaman & Schuske Metal Works, 344 Mo. 559, 127 S.W.2d 435; Ricketts v. Story Laundry & Dry Cleaning Co., 155 S.W.2d 536; Beem v. H.S. Lee Merc. Co., 337 Mo. 114, 85 S.W.2d 441; Weaver v. Norwich Pharmacal Co., 347 Mo. 995, 149 S.W.2d 846; Peterman v. Industrial Comm., 289 N.W. 379; Anderson v. Sir W. G. Armstrong Whitworth & Co., W.C. & Ins. Rep. 71, 15 N.C.C.A. 263. (2) Before an employee may recover compensation, he must prove that the accident (a) arose out of the employment and (b) that the accident arose in the course of the employment, and a showing of one without the other will not be sufficient to sustain an award of compensation. Sweeny v. Sweeny Tire Stores, 227 Mo.App. 93, 49 S.W.2d 295; Wahlig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 128; Cassidy v. Eternit, Inc., 326 Mo. 342, 32 S.W.2d 75; Bise v. Tarlton, 35 S.W.2d 993; Duggan v. Toombs-Fay Sash & Door Co., 228 Mo.App. 61, 66 S.W.2d 973; Huskey v. Kane Chevrolet Co., 173 S.W.2d 637; Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850; In re Employers' Liability Assur. Corp., 215 Mass. 497, 102 N.E. 697; Billiter, Miller & McClure v. Hickman, 247 Ky. 211, 56 S.W.2d 1003; Brady v. Oregon Lbr. Co., 117 Ore. 188, 243 P. 96. (3) Even though an employee be granted a privilege to work on something for his own use and benefit during working hours, and is injured, such accident is not compensable: Mulligan v. Oakes, 23 A.2d 870; Smith v. Seamless Rubber Co., 150 A. 110; Dunn v. University of Rochester, 194 N.E. 856, 266 N.Y. 362; Atlantic Refining Co. v. Sheffield, 134 S.E. 761.

Morris G. Levin and Wayne C. Smith, Jr., for respondent.

(1) Where an injury arises out of a settled practice or condition known to the employer, with which there is a causal relation between the injury and the employment, the injury is the result of an accident arising out of and in the course of the employment, and is compensable. Conklin v. Kansas City Pub. Serv. Co., 41 S.W.2d 608; Ricketts v. Story Laundry Co., 155 S.W.2d 536; Thomas v. Procter & Gamble Co., 104 Kan. 432, 179 P. 372; Metting v. Lehr Const. Co., 32 S.W.2d 121. (2) An injury arises "out of" the employment if the injury arose from something which had become an incident to the employment, or if the employee was injured in the performance of an act which the employer might reasonably have anticipated might be done in connection with the work. Conklin v. Kansas City Pub. Serv. Co., supra; Ricketts v. Story Laundry Co., supra; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 1228; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Keithley v. Stone & Webster Engineering Corp., 49 S.W.2d 296; Carlton v. Henwood, 115 S.W.2d 172; Meeting v. Lehr Const. Co., supra; Phillips v. Air Reduction Sales Co., 85 S.W.2d 551; Buckner v. Quick Seal, Inc., 118 S.W.2d 100; Price v. Kansas City Pub. Serv. Co., 42 S.W.2d 51; Huskey v. Kane Chevrolet Co., 173 S.W.2d 637; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264. (3) An injury arises "in the course of" the employment when it occurs within the period of the employee's employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Huskey v. Kane Chevrolet Co., supra; Smith v. Seaman & Schuske Metal Works Co., 344 Mo. 559, 127 S.W.2d 435; Buckner v. Quick Seal, Inc., supra; Conklin v. Kansas City Pub. Serv. Co., supra; Leilich v. Chevrolet Motor Co., supra; Wahlig v. Krenning-Schlapp Grocer Co., supra. (4) Violation or disobedience of prescribed rules, while acting within the scope of the employment, do not avoid liability if the rules are not observed or enforced. Kasper v. Liberty Foundry Co., 54 S.W.2d 1002; Nat. Biscuit Co. v. Roth, 146 N.E. 410; In re Von Ette, 111 N.E. 696; M.P. Gustafson Co. v. Industrial Comm., 348 Ill. 11, 180 N.E. 567. (5) The findings of fact and the award of the commission are in the nature of a special verdict, and entitled to the full force and effect of a jury verdict. Leilich v. Chevrolet Motor Co., supra; Hanley v. Carlo Motor Service Co., 130 S.W.2d 187; Sec. 3732, R.S. 1939. (6) A general finding necessarily implies a finding of every fact necessary to support such general finding. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008; State ex rel. Probst v. Haid, 330 Mo. 390, 62 S.W.2d 869; Hanley v. Carlo Motor Serv. Co., supra. (7) An appellate court cannot consider the weight of the evidence or the credibility of the witnesses on appeals from awards of the Workmen's Compensation Commission, and in determining if the award is supported by the evidence, an appellate court will consider only the evidence most favorable in support of the award, plus all reasonable inferences which may be drawn therefrom, and will disregard all evidence in contradiction thereof. Jones v. Century Coal Co., 46 S.W.2d 196; Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d 832; Noto v. Hemp & Co., 231 Mo.App. 982, 83 S.W.2d 136; Lunsford v. St. John's Hospital, 107 S.W.2d 163. (8) If the competent evidence is conflicting, the finding of fact by the commission is conclusive upon the court on appeal. State ex rel. Buttiger v. Haid, supra; Maltz v. Jackaway-Katz Cap Co., 82 S.W.2d 909. (9) The language used in the act and all reasonable implications therefrom shall be liberally construed to effectuate its purpose, and all doubts resolved in favor of the employee. Sec. 3764, R.S. 1939; Dauster v. Star Mfg. Co., 145 S.W.2d 499; Holmes v. Freeman, 150 S.W.2d 557; Morehead v. Grigsby, 132 S.W.2d 237; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264.

OPINION

Clark, C.J.

Appeal by an employer from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of an employee, respondent.

Respondent was injured while operating a buffing machine at his place of employment in appellant's plant. He had been employed by appellant about six and one-half years. At the time of injury he worked on a night shift from 4:15 p.m. to 12:30 a.m., in appellant's Department Six where plating, polishing and buffing of metals were done. Respondent's immediate foreman was one McGinley who on the day of the accident quit work at 5:00 p.m., leaving a list of things to be done by respondent and other employees who worked under respondent during McGinley's absence. A few hours later respondent plated and polished a gauge which had been sent in from another department. In doing this he put the gauge in a tank containing chemical solutions and also deposited in the tank a windshield frame of a toy automobile belonging to his infant daughter. He testified that in plating small articles it was best to have another piece of metal in the tank as "that uses up the amperage and gives it less chance to burn the other job," and that such was a common practice. Respondent first took the windshield from the tank, dipped it in hot water and left it to dry. Then he took out the gauge and after drying it put it in the buffing machine and polished it. Then he put the windshield in the machine and was polishing it when his attention was attracted to another employee and his left hand caught in the machine and was badly mangled, later requiring amputation. Other facts shown by the evidence will be mentioned later.

In their briefs and oral arguments the parties differ as widely in interpreting the evidence as in applying the law.

Appellant contends that, because respondent was operating the machine for his personal benefit and not for the benefit of his employer at the moment of injury, the accident did not arise out of or in the course of employment as the statute requires.

Respondent answers: that the evidence shows a widespread practice among the employees, continuous over many years, to do private work for themselves and other employees; that this practice was known to and countenanced by the foremen; that respondent's foreman had instructed him and other employees to keep busy on private work when not engaged on company work; that respondent was injured while at his place of duty and while doing an act which his employer might reasonably have anticipated and which was an incident of his employment; and, therefore, the injury arose out of and in the course of the employment.

The courts of this and other states have often found it necessary to construe the phrase "arising out of and in the course of employment," but no all-embracing definition has yet been framed. As we said in Leilich v. Chevrolet Motor Company, 328 Mo. 112, 40 S.W.2d 601, 605, every case involving this phrase "should be decided upon its own particular facts and circumstances and not by reference to some formula."

In many cases the injuries occurred while employees were away from the place of work. We do not have that problem here. Some cases hold there can be such a departure from...