Smith v. Hussmann Refrigerator Co.

658 S.W.2d 948, 1983 Mo. App. LEXIS 3531
CourtMissouri Court of Appeals
DecidedSeptember 27, 1983
DocketNo. 46933
StatusPublished
Cited by8 cases

This text of 658 S.W.2d 948 (Smith v. Hussmann Refrigerator Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Hussmann Refrigerator Co., 658 S.W.2d 948, 1983 Mo. App. LEXIS 3531 (Mo. Ct. App. 1983).

Opinion

REINHARD, Presiding Judge.

Claimant appeals from the denial of his worker’s compensation claim by the Labor and Industrial Relations Commission. The Commission concluded that the claimant was not within the scope and course of his employment at the time of his injury. We reverse.

Claimant had been employed by Star Cooler Company for approximately six months when Star Cooler was sold to the Hussmann Refrigerator Company. The claimant thereafter participated in packing Star Cooler equipment for relocation in the Hussmann plant, although the actual transportation of heavy equipment was carried out by a professional moving company under contract with Hussmann. Commencing approximately two weeks before claimant’s accident, claimant began working at the Hussmann plant, primarily as a forklift operator moving relocated equipment. At the time of his accident, claimant believed that he was in the process of being promoted to the position of leadman.

On October 24, 1981, the claimant sustained a back injury at the Hussmann plant [949]*949while equipment was still in the process of being moved. On this particular day, claimant reported for overtime work, it being a Saturday, and found that his regular foreman was absent. Claimant admits that the man supervising his work on that day was Mike Oakley, who was the foreman of another part of the production line, located in a different part of the building.

Claimant received his injury from the fall of a charging board. The charging board is a metal object which is approximately 7 to 8 feet high and weighs approximately 500 pounds. Although transported to the Huss-mann plant by the moving company the previous day, it had not yet been permanently positioned in the plant. As a consequence, the charging board was tied upright to a railing on the back of a catwalk. The catwalk extended above the cooler production line; employees were required to stand on it while working on the crating portion of the line.

Mr. Oakley instructed claimant and another employee, Mr. Tisi, to proceed to the far end of the building, which was the crating area of the production line, clean up the area and get some production out. At the time, the claimant remarked that his regular foreman had previously instructed him to operate the forklift on Saturday. Mr. Oakley, however, indicated that there was no forklift available for his use, and reiterated that claimant was to clean out the work area and get production started. According to Oakley, during this conversation the claimant twice asked whether the charging board should be moved; both times Oakley responded that the board would be moved on Monday by the moving company. Oakley further testified that the location of the charging board in no way interfered with the operation of the production line.

Claimant claims that the charging board did interfere with the crating operations, and further contends that he heard no direct prohibition against his either using the forklift or moving the board. In any event, claimant, Tisi, and another employee attempted to move the charging board, in the process of which it fell and severely injured the claimant.

Claimant’s injuries required surgical insertion of steel rods in his back. Furthermore, he remained in a partial body cast at the time of his hearing.

Following a hearing before an administrative law judge, the judge made specific findings of fact and concluded that claimant had been instructed not to move the charging board. By implication, the judge found that its location did not interfere with the operation of the production line. Consequently, the judge concluded that the claimant was not injured in the scope and course of his employment and denied benefits. The majority of the Commission adopted this ruling with the dissenting member finding that claimant’s conduct fell within the extent and scope of his employment.

In considering this matter, we are mindful that the standards governing our review of decisions of the Labor and Industrial Relations Commission are well settled. The Commission should be affirmed if, after a review of the entire record in the light most favorable to the finding, this court believes that the decision is supported by substantial and competent evidence. Johnson v. General Motors Assembly Division, 605 S.W.2d 511, 512 (Mo.App.1980); Lloyd v. County Electric Co., 599 S.W.2d 57, 60 (Mo.App.1980). However, decisions of the Commission which are reached by interpretation or application of law, as distinguished from the facts, fall within the province of this court’s review and correction. Lloyd v. County Electric Co., 599 S.W.2d at 60. The question presented, therefore, is whether the Commission correctly applied the law in finding the claimant was outside the scope of his employment. We think not.

The fact that an employee, at the time of receiving his injury, was performing an act specifically prohibited by his employer, does not necessarily deprive him of the right to compensation for his injury. Cf. Fowler v. Baalmann, 361 Mo. 204, 234 [950]*950S.W.2d 11, 16 (1950).1 In Fowler the employee, a pilot, was killed in an airplane crash. At the time of the accident, the claimant had undertaken to fly the employer’s plane despite cancellation of his flight by the employer. Thus, the claimant lacked authorization to fly the plane that night. Under these circumstances, the court stated:

Nor do these facts present an instance where an employee was doing a thing he was employed to do, but was doing it in a manner prohibited by his employer-, such as, an employee whose duty it was to oil certain machinery, but who (contrary to his employer’s direct and affirmative orders) oiled the machinery while it was in motion. Mere disobedience of an order as to the detail of the work in hand or the mere breach of a rule as to the manner of performing the work are not generally sufficient to deprive an employee of his right to compensation so long as he does not go out of the sphere of his employment. But compensation cannot be allowed when the employee goes outside of the sphere and scope of his employment and is injured in connection with an activity he has been expressly forbidden to undertake.
In Honnold on Workmen’s Compensation, Vol. 1, § 113, it is said: “There are prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within such sphere. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that a man has gone outside of the sphere.” Schneider’s Workmen’s Compensation Text, Vol. 6 § 1581, states that rule in these words: “But where, however the rule (order or prohibition) is one limiting the scope, ambit or sphere of work which the employee is authorized to do, such a violation forecloses the compensability of an injury so sustained.” An employer has the unqualified right to limit the scope of a servant’s employment and activity and to determine what an employee shall or shall not do. The employer likewise has the unqualified right to determine when an employee shall do a certain thing. Kasper v. Liberty Foundry Co., Mo.App., 54 S.W.2d 1002, 1005.

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658 S.W.2d 948, 1983 Mo. App. LEXIS 3531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hussmann-refrigerator-co-moctapp-1983.