Wahlig v. Grocer Co.

• Decision Date: 11 June 1930
• Docket Number: No. 29544.,29544.
• Citation: 29 S.W.2d 128
• Parties: MAUDE L. WAHLIG v. KRENNING-SCHLAPP GROCER COMPANY and METROPOLITAN CASUALTY INSURANCE COMPANY, Appellants.
• Court: Missouri Supreme Court

29 S.W.2d 128

MAUDE L. WAHLIG v. KRENNING-SCHLAPP GROCER COMPANY and METROPOLITAN CASUALTY INSURANCE COMPANY, Appellants.

No. 29544.

Supreme Court of Missouri, Division Two.

June 11, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix, Judge.

AFFIRMED.

Case, Voyles & Stemmler for appellants.

Oliver A. Fabick for respondent.

(1) The accident to Wahlig "arose out of and in the course of his employment." The accident was the result of a "street risk." The right to recovery exists, where the employee received a street injury while in the course of his employment, even though the employment may not have required his presence on the street continually, but only occasionally, or even on the one occasion on which he was injured. Workmen's Compensation Act, Laws 1927, sec. 3, p. 492; London & Lancashire Co. v. Industrial Accident Commission, 35 Cal. App. 681; Industrial Commission v. Life Ins. Co., 64 Colo. 480, 174 Pac. 589; Larke v. Mutual Life Ins. Co., 90 Conn. 303, 97 Atl. 320; Capital Paper Co. v. Conner, 81 Ind. App. 545, 144 N.E. 474; Pierce v. Clothing & Supply Co., 1 K.B. 997-CA, 4 B.W.C.C. 242; Martin v. Lovibond & Sons, 2 K.B. 227, 6 B.R.C. 466, 5 N.C.C.A. 985-CA; M'Neice v. Sewing Machine Co., 48 Scot. L.R. 15, 4 B.W.C.C. 351 Ct. of Sess.; Globe Indemnity Co. v. Industrial Accident Commission, 36 Cal. App. 280, 171 Pac. 1088; Industrial Commission v. Automobile Co., 71 Colo. 424, 207 Pac. 479; Industrial Commission v. Hunter, 73 Colo. 226, 214 Pac. 393; New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786; Zeier v. Transfer Co., 254 Pac. 209; Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 118 N.E. 1028; Empire Health & Accident Ins. Co. v. Purcell, 76 Ind. App. 551, 132 N.E. 664; Palmer v. Main, 209 Ky. 226, 272 S.W. 736; Kunz v. Shade Tree Co., 192 Mich. 435, 158 N.W. 851; Stockley v. School District, 231 Mich. 523, 204 N.W. 715; Hansen v. Fuel Co., 144 Minn. 105, 174 N.W. 726; Bookman v. Culvert & Road Equipment Co., 153 Minn. 479, 190 N.W. 984; Zabriskie v. Erie Railroad Co., 86 N.J.L. 266, 92 Atl. 385; Redner v. Faber & Son Co., 223 N.Y. 381, 119 N.E. 842; Louis Katz v. Kadans & Co., 232 N.Y. 420, 134 N.E. 330; Chandler v. Industrial Commission, 55 Utah, 213, 184 Pac. 1020; Roberts v. Newcomb & Co., 201 App. Div. 759, 195 N.Y. Supp. 405, affirmed 234 N.Y. 553 without opinion; Wilber v. Fonda, 208 App. Div. 249, 203 N.Y. Supp. 336; Gibbs v. Macy & Co., 214 App. Div. 335, 212 N.Y. Supp. 428, affirmed 242 N.Y. 551; Schroeder and Daly Co. v. Industrial Commission, 169 Wis. 567, 173 N.W. 328; United States Casualty Co. v. Hardware Co., 175 Wis. 162, 184 N.W. 694; Dennis v. White, A.C. 479, Ann. Cas. 1917E 325 (England); Arkell v. Gudgeon, 87 L.J.K.B.N.S. 1104 H.L. (England); Bett v. Hughes, 52 Scot. L.R. 93, 8 B.W.C.C. 362 Ct. of Sess. (Scotland); White v. W. and T. Avery, 53 Scot. L.R. 122, 9 B.W.C.C. 663 Ct. of Sess. (Scotland); Heffernan v. Secretary of State, 52 Ir. L.T. 157, 11 B.W.C.C. 424 (Ireland); State v. District Court, 169 N.W. 274; Milwaukee v. Althoff, 145 N.W. 238; Matter of Heidemann v. Telegraph Co., 130 N.E. 302; Harby v. Marwell Brothers, 196 N.Y. Supp. 729; Foley v. Rubber Co., 99 Atl. 624; Rosmuth v. Radiator Co., 193 N.Y. Supp. 769; Fournier's Case, 113 Atl. 270; Con. Underwriters v. Breedlove, 265 S.W. 128; Mahowald v. Thompson-Starrett Co., 158 N.W. 913, 159 N.W. 565, 134 Minn. 113; Miller v. Taylor, 159 N.Y. Supp. 999; Putnam v. Murray, 160 N.Y. Supp. 811; Employers' Indemnity Corp. v. Kirkpatrick, 214 S.W. 956; Beaudry v. Watkins, 191 Mich. 445; Kingsley v. Donovan, 155 N.Y. Supp. 801; Hendricks v. Seeman Bros., 155 N.Y. Supp. 638; Granite Sand & Gravel Co. v. Willoughby, 23 N.E. 194; Burton Auto Transfer Co. v. Industrial Comm., 174 Pac. 72; J.E. Porter Co. v. Industrial Commission, 301 Ill. 76; In re Harraden, 118 N.E. 142, 66 Ind. App. 298; Refuge Assur. Co. v. Miller, 49 Sc. L.R. 67, 5 B.W.C.C. 522; Wold v. Chevrolet Motor Co., 179 N.W. 219; Consumers' Co. v. Ceislik, 121 N.E. 832; Bachman v. Waterman, 121 N.E. 8, 68 Ind. App. 580. (2) The findings of fact made by the commission within its powers are conclusive and binding on appeal. The commission, like a jury, may draw reasonable inferences from the facts and circumstances, and a finding by the commission stands upon the same footing as a finding of a trial court or the verdict of a jury, and when sustained by competent evidence is binding on the court of appeal. The award in this case is based on competent evidence. Workmen's Compensation Act, Laws 1927, sec. 44, p. 512; Consumers' Co. v. Ceislik, 121 N.E. 832; Capital Paper Co. v. Conner, 144 N.E. 474, 81 Ind. App. 545; Bachman v. Waterman, 121 N.E. 8, 68 Ind. App. 580, and other cases cited under Point 1. (3) The award is for the right amount and its computation is correct. In the interpretation of statutes, words in common use are to be construed in their natural, plain and ordinary signification. Workmen's Compensation Act, Laws 1927, secs. 21, 22, pp. 502-504; 36 Cyc. 1114, 1106; State ex rel. v. Wilder, 206 Mo. 541.

HENWOOD, C.

On April 11, 1928, Maude L. Wahlig, widow of George A. Wahlig, filed with the Workmen's Compensation Commission her claim for death benefits against Krenning-Schlapp Grocer Company, the employer of the deceased, and Metropolitan Casualty Insurance Company, the insurer. A hearing before the commission resulted in a final award of $150 for burial expenses, and a total death benefit of $9,486, or the sum of $20 per week for 474.3 weeks. The employer and insurer took an appeal to the Circuit Court of the City of St. Louis, where a judgment was entered affirming the findings and final award of the commission, and from that judgment the employer and insurer have appealed to this court.

The claim and the answer thereto, filed with the commission, constitute the pleadings in the case. In the claim it is alleged that the death of the claimant's husband was caused by an accident arising out of and in the course of his employment. In their answer the employer and insurer deny that the accident arose out of and in the course of the employment of the deceased.

The judgment of the circuit court recites that, on August 17, 1928, the commission made the following findings and the following final award:

"That on December 13, 1927, at St. Louis, Missouri, George A. Wahlig died as the result of injuries sustained by him on December 12, 1927, in St. Louis, Missouri, in an accident when he was struck by a train; that, at the time, he was in the employment of Krenning-Schlapp Grocer Company as a salesman and collector; that, at the time of the accident, he was engaged in his employment; that the accident arose out of and in the course of his employment; that, before and at the time of said accident, the employer and employee had elected to accept the Workmen's Compensation Act; that the employee's average weekly wages were $47.43; that, at the time of the accident and death, Maude L. Wahlig was his widow and was a total dependent; that compensation is due in the sum of $20 per week for 474.3 weeks, or a total of $9,486; that said commission on said August 17, 1928, found and awarded compensation for said accident against the employer and insurer in the sum of $150 for burial expenses, and compensation in favor of Maude L. Wahlig, widow, in the sum of $20 per week, for 474.3 weeks, or until her prior death or re-marriage, with the remainder to Ardella Wahlig, as her interest may hereafter appear; each of said payments to begin as of December 13, 1927, and to be payable and be subject to modification and review as provided in the Workmen's Compensation Act."

The evidence offered by the claimant at the hearing before the commission, is, in substance, as follows:

George A. Wahlig was thirty-six years of age at the time of his death, and, at the time of the hearing, his wife, Maude L. Wahlig, was thirty-five years of age, and their daughter, Ardella Wahlig, was eleven years of age. They lived at 612 Dover Street in the city of St. Louis, and Wahlig was employed by Krenning-Schlapp Grocer Company of the City of St. Louis as a salesman and collector. He had been so employed for about fifteen years. The territory in which he worked included the city of St. Louis, St. Louis County, and Scott Field, Illinois. In that territory he was free to call on any customer or prospective customer of his employer, except the regular customers of his employer's other salesmen, and he was permitted to choose his routes and means of transportation in covering his territory. He had no regular working hours and sometimes worked as late as seven and eight o'clock in the evening. His employer knew that he called on customers later than 5:15 in the afternoon. Before leaving his home in the morning he frequently solicited orders by telephone and reported the same to the office of his employer by telephone or mail. He used his own automobile in traveling over his territory and paid the operating expenses incident thereto out of his earnings. His employer preferred that its salesmen use automobiles, and thirty-three of its thirty-six salesmen used automobiles. Oscar Gould, who conducted a store at 6846 Flyer Avenue in the city of St. Louis, was a regular customer of Wahlig's employer, and it was Wahlig's custom to call on Gould about 5:30 every Monday afternoon. Wahlig talked to Gould over the telephone in the morning of Monday, December 12, 1927, and arranged to call at Gould's store in the afternoon of that day. On Saturday of the previous week, Wahlig was instructed by Mr. Pavitt, the secretary and treasurer of his employer, to see Gould on Monday and collect a payment on Gould's account. Wahlig left his home in the morning of Monday, December 12, 1927, and about 5:15 in the afternoon of that day, while driving westwardly on Delor Street, and across the tracks of the Missouri Pacific Railroad Company, in the city of St....