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August 8, 1983


From the Circuit Court of St. Clair County; Civil Appeal; Judge Harold A. Kyser.

Motion for Rehearing Overruled, Transfer Denied August 30, 1983.

Before Maus, P.j., Hogan, Prewitt, JJ.

The opinion of the court was delivered by: Maus

An Administrative Law Judge awarded death benefits under the Missouri Worker's Compensation Act to the widow and surviving minor child of Jimmy Lee Moore. Upon appeal of the Munlake Construction Company and Royal Insurance Company (the Employer), the Labor and Industrial Commission entered a final award in favor of the dependents. As the accidental death occurred before August 13, 1980, the Employer's appeal was to the Circuit Court of St. Clair County. § 287.490, RSMo 1980. That court affirmed the final award. On this appeal, the Employer's basic claim of error is founded upon the general rule that an accident occurring while an employee is going to or coming from work is not compensable. The dependents contend the circumstances fall within one or more of the recognized exceptions to that general rule.

The resolution of the Employer's appeal is whether or not there is competent and substantial evidence to support the determination of the Commission. Missouri Department of Social Services v. Blatter, S.D. 12961, July 25, 1983. In support of its position, the Employer recites and repeats evidence conflicting with evidence that supports the award. It cites as conclusive declarations of its general manager and superintendent concerning limitations of the authority of Eutus Neel. The Employer also heavily relies upon inferences from the evidence contrary to the award. However, this court must view the evidence in its entirety and all legitimate inferences reasonably arising therefrom, most favorably to the final award. Nichols v. Fruin-Colon Construction Co., 641 S.W.2d 149 (Mo. App. 1982). When the record is so considered, the evidence supports the following salient facts.

The Employer is a construction company. During the period in question, it was engaged in constructing roads at seven different job sites in the Vernon and Bates County area. A bridge was also to be constructed at one site. The project office was a trailer located at one of the job sites near Prairie City in Bates County. The work was in the charge of a project superintendent.

In the absence of special instructions, all hourly employees were required to "clock in" at the project office. Normal working hours were from 8:00 a.m. to 4:30 p.m. From the project office, the employees dispersed to their work assignments throughout the area. Employees were paid from the time they clocked in.

In November, 1979, Eutus Neel was hired to assist the project superintendent in quality control and as a surveyor. A letter written on behalf of the Employer to Neel, a copy of which was sent to the Corps of Engineers, includes the statement "It is your responsibility to act in the absence of the Project Superintendent, Jim Dickerson, and to act in conjunction with Mr. Dickerson in seeing that all work performed on the above-captioned project is in strict compliance with the plans and specifications." Upon authorization by the project superintendent, Neel hired Moore. Moore's primary duty was to assist Neel. When not so engaged, Moore was authorized to work as a laborer. When Moore was working under him, Neel fixed his work assignments and his hours. Time records demonstrate Moore spent the great majority of his time assisting Neel. Those time records show Moore did work some irregular hours, including overtime. The project superintendent reviewed these time cards. No one connected with the Employer questioned the hours of work.

The employee lived near Coal, east of Clinton. This was some distance north and east of the project office. Neel lived in Polk County, generally south and east of the project office. Customarily, Neel and Moore met at a cafe north of Osceola. Before Moore bought his motorcycle, the two alternated in driving to the project office. After Moore bought his motorcycle, he rode from the cafe to the project office with Neel.

The Employer bought concrete from a batch plant near El Dorado Springs. The concrete had to meet the plans and specifications of the Corps of Engineers. The proportions of water and other ingredients such as sand and cement could vary according to the moisture content of the aggregate. A representative of the Employer was required to supervise or witness the preparation of the concrete at the plant.

Prior to the day in question, Neel supervised the preparation of the concrete. However, Moore on occasion had accompanied Neel. On June 30, 1980, Neel learned that concrete was to be poured on July 1, 1980. The concrete was to be prepared early because of the heat. It was to "batch out" between 7:15 and 7:30 a.m. Neel instructed Moore to report to the batch plant the next morning not later than 7:30. He told Moore that he would start his time "1/2 hour earlier, which would have been approximately 7:00 a.m. the next morning, to compensate for his gas." This would leave the one company vehicle available for the use of Neel in driving from the project office to the job site.

On July 1, 1980, Moore left home at approximately 6:00 a.m., one-half hour earlier than usual. He was riding his motorcycle. At approximately 7:00 a.m. he was in a fatal traffic accident. The accident occurred on Hwy. B, west of Osceola. This was a route by which Moore could reach the batch plant, although not the shortest route. Moore had in his billfold a piece of note paper upon which was written a formula for the preparation of the concrete, with other cryptic notations. The basic formula on the note paper was in the handwriting of Neel. The other notations were in the handwriting of Moore. Those notations included the phone number of the batch plant and "1-1/2 mile e Papineville." This is the approximate location of one of the construction sites.

At approximately 9:00 a.m. that morning, Neel arrived at the job site. The project superintendent arrived about the same time. The superintendent said the batch plant called and reported no company representative was there. Neel then went to the batch plant in order that the required concrete could be prepared.

It could be concluded the formula was necessary for the preparation of the cement. Moore was performing a service much like the foreman who was taking blue prints to a job site in Cox v. Copeland ...

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