Beem v. H. D. Lee Mercantile Co.

• Decision Date: 09 July 1935
• Parties: Mary Beem v. H. D. Lee Mercantile Company, Employer, and Employers' Liability Assurance Corporation, Insurer, Appellants
• Court: Missouri Supreme Court

85 S.W.2d 441

337 Mo. 114

Mary Beem v. H. D. Lee Mercantile Company, Employer, and Employers' Liability Assurance Corporation, Insurer, Appellants

Supreme Court of Missouri

July 9, 1935

Rehearing Denied July 9, 1935.

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge; Opinion filed at September Term, 1934, April 17, 1935 motion for rehearing filed; motion overruled at May Term July 9, 1935.

Affirmed.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, John N. Monteith and Dean Wood for appellants.

(1) The court erred in sustaining the award of the commission for there was not sufficient competent evidence in the record to warrant the making of the award in that deceased had abandoned his employment for his own personal pleasure prior to his death and at the time of his death had not yet resumed his employment and, therefore, his death was not caused by accident arising out of and in the course of his employment. Metting v. Lehr Const. Co., 225 Mo.App. 1152, 32 S.W.2d 121; Leilich v. Chevrolet Motor Co., 228 Mo. 112, 40 S.W.2d 601; Duggan v. Toombs-Fay Sash & Door Co., 66 S.W.2d 973; Southern Cas. Co. v. Ehlers, 14 S.W.2d 111; In the Matter of Priestley, 253 N.Y.S. 894, affirmed 180 N.E. 358; Harby v. Marwell Brothers, 196 N.Y.S. 729, affirmed 139 N.E. 711; Wynn v. Southern Surety Co., 26 S.W.2d 691; Sullivan v. Industrial Comm., 10 P.2d 924; Covey-Ballard Motor Co. v. Industrial Comm., 227 P. 1028; State v. District Court of Ramsey County, 172 N.W. 133; 20 A. L. R. 316; 49 A. L. R. 454; 63 A. L. R. 469; 76 A. L. R. 356; 78 A. L. R. 684; Bise v. Tarlton, 35 S.W.2d 993; Cassidy v. Eternit, 32 S.W.2d 75; Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d 832. (2) The court erred in sustaining the award of the commission because there was not sufficient competent evidence to warrant the making of the award for said award was based on purely conjectural and speculative evidence. Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470; Jackson v. Aetna Bricklaying & Construction Co., 59 S.W.2d 705; Allison v. Eyermann Const. Co., 43 S.W.2d 1063; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961; Sweeny v. Sweeny Tire Stores Co., 49 S.W.2d 205; Keithley v. Stone & Webster Engineering Corp., 49 S.W.2d 296; Wall v. Royal Indemnity Co., 299 S.W. 319; Schraner v. Massman Const. Co., 48 S.W.2d 104.

W. H. Hargus, W. M. Anderson and Joseph Koralchik for respondent.

(1) The court did not err in making the award for the reason that there was sufficient substantial evidence to justify the award. State ex rel. Buttiger v. Haid, 51 S.W.2d 1008; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Griffin v. Anderson Motor Service Co., 59 S.W.2d 805; Western Pac. Railroad Co. v. Industrial Accident Co., 224 P. 754; 2 Schneider, Workmen's Compensation Law, p. 1855; Flucker v. Carnegie Steel Co., 106 A. 192; Saunders v. Tube Co., 110 A. 538; Sparks Milling Co. v. Industrial Comm., 127 N.E. 737; Smith v. Oesterhald & Son, 189 A.D. 284, 179 N.Y.S. 10; Swift & Co. v. Industrial Comm., 183 N.E. 476; Wahlig v. Krenning-Schlapp Grocery Co., 325 Mo. 684, 29 S.W.2d 131. (2) The accident grew out of and in the course of deceased's employment, since his deviation had ended prior to the time of his death, and because the accident he sustained was a risk growing out of his employment. (a) The deceased sustained his accident in the course of his employment for the reason he had resumed his master's service at the time of the accident. McNicoll's Case, 215 Mass. 497, L. R. A. 1916A, 306; Bowen v. Hall-Baker Grain Co., 67 S.W.2d 536; 28 R. C. L., sec. 92, p. 803; Kelling v. Froemming Brothers, 287 Pa. 471, 135 A. 129; In re Raynes, 66 Ind.App. 321, 118 N.E. 387; Messer v. Manufacturers L. & H. Co., 263 Pa. 5, 106 A. 85; Haddock v. Edgewater Steel Co., 263 Pa. 120, 106 A. 196; State v. McCarthy Brothers Co., 141 Minn. 61, 69 N.W. 274; Mason v. Scheffer, 203 A.D. 332, 197 N.Y.S. 22; Sylcox v. Natl. Lead Co., 38 S.W.2d 497; Empire Health & Acc. Ins. Co. v. Purcell, 132 N.E. 664; Industrial Comm. v. Irwin, 72 Colo. 573, 212 P. 829; Capital Paper Co. v. Conner, 144 N.E. 474; Gibson v. New Crown Market, 208 A.D. 267, 203 N.Y.S. 355; Stratton v. Interstate Fruit Co., 199 N.W. 117; Railway Express Agency v. Lewis, 159 S.E. 188; Southern Cas. Co. v. Ehlers, 14 S.W.2d 111; Webb v. North Side Amusement Co., 147 A. 846; Siglin v. Armour & Co., 103 A. 991; Rachels v. Pepoon Co., 135 A. 684, affirmed 139 A. 923; Federal Mut. Liability Ins. Co. v. Industrial Acc. Comm., 270 P. 992; Meyer v. Royalton Oil Co., 208 N.W. 645; Consolidated Underwriters v. Breedlove, 265 S.W. 128; Irwin Neisler & Co. v. Industrial Comm., 178 N.E. 357; Schulte v. Grand Union Tea Co., 43 S.W.2d 832; Vanneman v. Laundry Co., 166 Mo.App. 685; Anderson v. Nagel, 214 Mo.App. 134, 259 S.W. 861; 39 C. J. 1298, 1304. (b) The injuries received by deceased arose out of his employment for the reason that it constituted a risk incidental to his employment. Griffin v. Anderson Motor Service Co., 59 S.W.2d 805, L. R. A. 1917D, 130; Wohlig v. Krenning-Schlapp Grocery Co., 29 S.W.2d 128; Katz v. Kadans & Co., 232 N.Y. 420, 134 N.E. 330; Industrial Comm. v. Hunter, 73 Colo. 226, 214 P. 393; Rasmuth v. Amer. Radiator Co., 201 A.D. 207, 193 N.Y.S. 769; Industrial Comm. v. Pueblo Automobile Co., 71 Colo. 424, 207 P. 479; Vivier v. Lumberman's Indemnity Exchange, 250 S.W. 417; Goodwin v. Bright, 163 S.C. 576; Sweeney v. Sweeney Tire Stores Co., 49 S.W.2d 205. (3) Appellants' cases distinguished. Sullivan v. Industrial Comm., 10 P.2d 924; Wynn v. Southern Surety Co., 26 S.W.2d 691; State v. District Court, 172 N.W. 133; Bise v. Tarlton, 35 S.W.2d 993; Cassidy v. Eternit, 32 S.W.2d 75; Southern Casualty Co. v. Ehlers, 14 S.W.2d 111; Duggan v. Toombs-Fay Sash & Door Co., 66 S.W.2d 973; In the Matter of Marks v. Gray, 251 N.Y. 90, 167 N.E. 182; Sawtell v. Sawyer, 44 S.W.2d 264; In the Matter of Priestley, 253 N.Y.S. 894; Harby v. Marwell Brothers, 196 N.Y.S. 729.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This case originated before the Workmen's Compensation Commission of this State wherein claimant, Mary Beem, widow of W. D. Beem, deceased, filed her claim for compensation under the Workmen's Compensation Law of this State against defendants as employer and insurer for compensation for the death of her husband by an accident arising out of and in the course of his employment. The parties so framed the issues that the litigated question was whether or not the deceased's death was an "accident arising out of and in the course of his employment." The defendant mercantile company, who with its insurer contested the claim, is a wholesale grocery house and claimant's husband, the deceased, when he met his death, was a traveling salesman in its employ. The Workmen's Compensation Commission, on the evidence adduced, found that the death of claimant's husband was due to an accident which arose out of and in the course of his employment and awarded claimant compensation in the total amount of $ 10,534.

The accident occurred in Cass County and an appeal was taken by defendants to the circuit court of that county, which, on review, approved the finding and award of the commission and entered judgment accordingly. The defendants have appealed the case here and insist that the evidence taken most favorable for the claimant, does not support the judgment of the trial court affirming the finding of the Compensation Commission that the death of claimant's husband, W. D Beem, arose out of and in the course of his employment. The question of whether the facts found by the commission support the award and whether there was sufficient competent evidence in the record to warrant the making of the award are questions of law reviewable by the circuit court and by this court. [Sec. 3342, R. S. 1929.]

There is no dispute that claimant's husband at the time of his death was a traveling salesman in defendant's employ. His home and headquarters were at Harrisonville, Missouri, and his trade territory was around that city, including the town of Pleasant Hill, about twelve miles distant. He did his traveling by automobile. On the morning of Friday, March 10, 1933, he was found dead in his automobile near the highway leading from Pleasant Hill to Harrisonville, but nearer to Harrisonville, and the tracks of his car showed he had been traveling in that direction. He had been dead several hours when found with a bullet hole through his head and he and the car seat covered with blood. He had been in Pleasant Hill the evening of Thursday, March 9, and left there after midnight obstensibly to return to his home at Harrisonville. This was his usual route. He had some money of his own and some that he had collected for his employer and it is conceded that he was likely shot and killed on his road home from Pleasant Hill for the purpose of and to accomplish a robbery by some person never apprehended.

Without going into detail, the evidence shows that the deceased, W D. Beem, pursued his work and conducted the business of traveling salesman for his employer in the usual manner of traveling salesmen in rural districts. He had a route sheet covering a week's work showing what towns or country stores he would make each day, on an average of five or six a day, so that his employer would know where to reach him by phone or letter on any particular day. He was supposed to follow this route and be at each town at the time designated as near as practical, but the details were largely in his discretion and governed somewhat by circumstances. His hours of work were largely in his discretion, sometimes short and often running into the night. He tried to be at his proper starting point every morning and visit the towns listed on...