Brauch v. Skinner Bros. Mfg. Co.

• Decision Date: 10 June 1932
• Docket Number: 31647,31648
• Parties: Mrs. Emilie Brauch v. Skinner Brothers Mfg. Co., Appellant. Mrs. Emilie Brauch v. Skinner Brothers Mfg. Co., T. H. Mastin & Company, Appellants
• Court: Missouri Supreme Court

51 S.W.2d 27

330 Mo. 760

Mrs. Emilie Brauch v. Skinner Brothers Mfg. Co., Appellant. Mrs. Emilie Brauch v. Skinner Brothers Mfg. Co., T. H. Mastin & Company, Appellants

Nos. 31647, 31648

Supreme Court of Missouri

June 10, 1932

Appeal from Pike Circuit Court; Hon. E. B. Woolfolk, Judge.

Affirmed.

N W. Hartman and Fordyce, Holliday & White for appellants.

(1) Complainant, having failed to prove, by the preponderance of the evidence and by substantial competent evidence, that the death of deceased was caused "by accident arising out of and in the course of his employment," is not entitled to an award of compensation under the Missouri Workmen's Compensation Act, and therefore the court erred in not reversing the findings of the Missouri Workmen's Compensation Commission. Sec. 3, Mo. Workmen's Compensation Act; Subparagraph C, Sec. 7, Mo. Workmen's Compensation Act; Royal Indemnity Co. v. Madrigal, 14 S.W.2d 106; Van Gee v. Courts, 169 N.E. 370; Shegart v. Industrial Comm., 168 N.E. 288; Nesbit v. Twin City Forge & Foundry Co., 10 A. L. R 165; Orsinie v. Torrence, 113 A. 924; De Rosa et al. v. Levering & Carrigues Co. (Sup. Ct. Conn., July 9 1930); In re Schofield's case, 172 N.E. 346; Bryant v. Fissell, 84 N. J. L. 72; Colucci v. Edison Portland Cement Co., 94 N. J. L. 542; Bolos v. Trenton Fire Clay Co., 102 N. J. L. 479; Angerstein's Workmen's Compensation Act of Ill., 1930 Edition; Bloomington, Decatur & Champaign Railroad v. Industrial Comm., 276 Ill. 239; Dambold v. Industrial Comm., 323 Ill. 377; Danville, Urbana & Champaign Railroad v. Industrial Comm., 307 Ill. 142; Wahlig v. Krenning Schlapp Gro. Co., 29 S.W.2d 128; Stone v. Blackmer Post, 27 S.W.2d 459; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601.

John F. Clancy, Vance Newman and Allen, Moser & Marsalek for respondent.

(1) The finding of the Workmen's Compensation Commission, that the accident to respondent's husband arose out of and in the course of his employment by the appellant Skinner Brothers Manufacturing Company constitutes a finding of fact which is conclusive and binding on the courts. Sec. 3342, R. S. 1929; Leilich v. Chevrolet Motor Co. (Mo.), 40 S.W.2d 601. (2) The finding and award of the commission have the force and effect of the verdict of a jury, and in determining whether the record contains sufficient competent evidence to support the award, respondent should be accorded the benefit of all testimony favorable to her contentions, together with all reasonable inferences to be drawn therefrom. Rolens v. Keller Const. Co. (Mo. App.), 24 S.W.2d 1077; Kinder v. Hannibal Car Wheel & Fdy. Co. (Mo. App.), 18 S.W.2d 91; Hammack v. West Plains Lumber Co. (Mo. App.), 30 S.W.2d 650; Betz v. Columbia Tel. Co. (Mo. App.), 24 S.W.2d 224; Huelsmann v. Stute & Co. (Mo. App.), 28 S.W.2d 387; Metting v. Lehr Const. Co. (Mo. App.), 32 S.W.2d 121; Wahlig v. Krenning-Schlapp Grocery Co. (Mo. Sup.), 29 S.W.2d 128; London & L. Co. v. Industrial Acc. Comm., 35 Cal.App. 681, 170 P. 1074; Bendett v. Mohican, 98 Conn. 544, 120 A. 148; Ohmen v. Adams Bros., 109 Conn. 378, 146 A. 825; Saba v. Pioneer Contracting Co., 131 A. 394; Smith v. Hamilton, 231 Ill.App. 482; J. E. Porter Co. v. Industrial Comm., 301 Ill. 76, 133 N.E. 652; Alberta Contracting Corp. v. Santomassimo (N. J. L.), 150 A. 830; Orange Screen Co. v. Drake (N. J. L.), 151 A. 486; Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N.W. 851; Leach v. J. I. Case Threshing Machine Co., 219 N.W. 884; Chase v. Emery Mfg. Co., 271 Pa. 265, 113 A. 840.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Defendants appealed separately from an order of the Circuit Court of Pike County, Missouri, affirming an award of the Workmen's Compensation Commission in favor of plaintiff and against defendants for four hundred and forty weeks death benefit, at the rate of twenty dollars ($ 20) per week; a total of eight thousand eight hundred dollars ($ 8800); also an allowance of one hundred and fifty dollars ($ 150) burial expenses and one hundred dollars ($ 100) for medical aid.

The sole contention of defendants is that the evidence failed to prove that the death of deceased, plaintiff's husband was caused by an accident arising "out of and in the course of" his employment, as is required by Section Three of the Compensation Act.

George Brauch, plaintiff's husband, had been in the employ of defendant, Skinner Brothers Manufacturing Company, for twelve years. On various occasions deceased and other mechanics were ordered, by defendant, to do work on jobs outside of the city of St. Louis. Defendant company on these occasions would advance a certain sum to the workmen for traveling and hotel expenses. The traveling expenses were figured on the basis of the cost of railroad mileage. On the completion of the job the men would make a report of the number of hours of labor performed and would also report the amount expended for board and transportation. If the expense account was less than the amount advanced for that purpose the difference of the amounts would be charged against the employee's pay. There was some evidence that the workmen were paid for the time engaged in traveling to and from the out of town jobs. One of defendant's foremen testified that, when it was necessary to travel during working hours, the men received credit for that time. However, as a rule the men were asked to travel at night. This was done for convenience sake and for the benefit of the company. The company only paid the men for time spent in traveling during working hours. On September 25, 1928, defendant ordered deceased and three other mechanics to go to Hannibal for the purpose of performing a job for the International Shoe Company, at that place. Oscar Paul was to be the foreman on this particular work. The four men met on the afternoon of September 25, at deceased's home and from there proceeded on their way to Hannibal. Deceased and Charles Jones traveled in one automobile and the other two men made the trip in another car. The car in which deceased was riding was driven by Charles Jones. When they arrived near Bowling Green, Missouri, the car collided with a car parked on the roadway, turned over and injured Brauch, from which injuries he died the following morning.

It is the contention of defendants that the company required Brauch to travel by railroad and that when he undertook to travel by automobile he did so to save a part of the expense account for himself.

From the evidence, we learn that the foremen of the defendant company knew that the men were going to make this trip by automobile. It is also in evidence that this was the usual mode of travel on outside jobs. The expenses allowed the men were figured on the basis of railroad mileage for convenience sake only. No objection was ever made because the employees traveled in cars and thus saved a part of their traveling expenses. This was known to the company. One of defendant's foremen testified that the men were allowed railroad fare for expense of travel, but that the mode of travel was entirely left to the men.

Plaintiff introduced evidence that she was the widow of deceased and that she and her five children were wholly dependent upon deceased for their support. The finding of facts, as made by the Compensation Commission, upon which the final award was made, consists of questions and answers. In so far as material to the issue they are:

"1. Was there an accident? Yes.

"2. Date; September 25, 1928.

"3. Place: Bowling Green, Missouri.

"4. Was above employee in employ of above employer at the time of accident? Yes.

"5. Did accident arise out of and in the course of the employment? Yes.

"6. Before and at the time of accident had employer elected to accept the act? Yes.

"7. Employee? Yes.

"8. What part of employer's compensation liability for accident is insured by above insurer? All.

"9. Work employee was doing for employer at time of accident: . . .

"10. How accident happened: Driving to a job outside of the city of St. Louis when automobile overturned.

"11. Did accident cause death? Yes. . . .

"18. Employee's average weekly wages: $ 44.00.

"19. Weekly compensation: $ 20.00. . . .

"Compensation Due.

"21. Value necessary medical aid not furnished by employer or insurer: To Dr. Willis Young . . . $ 100.00.

"22. Amount of compensation due:

440 weeks compensation at rate of $ 20.00 per week

$ 8,800.00"

The circuit court affirmed the award and finding of the commission. Section 3 of the Compensation Act, now Section 3301, Revised Statutes 1929, provides in part as follows:

"If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment . . ."

Section 7 of the Compensation Act, now Section 3305, Revised Statutes 1929, reads:

"(c) Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of such employment,' it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such services."

Appellants cite in their brief the above provisions of the Compensation Act and contend that, under the evidence in this case, the accident, which resulted in the death of Brauch, did not arise "out of and in the course of" the employment. These same provisions of the statute have been before this court for consideration on a number of occasions. For the purpose of this case we must bear in mind...