Brown v. Weber Implement & Auto Co., 40360.

• Court: United States State Supreme Court of Missouri
• Citation: 206 S.W.2d 350
• Docket Number: No. 40360.,40360.
• Parties: MARY H. BROWN, (Widow) v. WEBER IMPLEMENT AND AUTO COMPANY, (Employer and Self-Insurer), Appellant.
• Decision Date: 10 November 1947

206 S.W.2d 350 MARY H. BROWN, (Widow)
v.
WEBER IMPLEMENT AND AUTO COMPANY, (Employer and Self-Insurer), Appellant. No. 40360. Supreme Court of Missouri. Division Two, November 10, 1947. Rehearing Denied, December 8, 1947.

[206 S.W.2d 351]

Appeal from Circuit Court of City of St. Louis. — Hon. Wm. H. Killoren, Judge.

AFFIRMED.

Paul J. Kaveney for appellant; Robert W. Herr on the brief.

(1) Where the testimony of witnesses is as irreconcilable and contradictory as is the testimony of the claimant's witnesses in this case, such testimony may be disregarded wholly or in part and can form no reasonable basis for the finding and award of the Compensation Commission. Sec. 22, Art. V, 1945 Constitution of Missouri; Sec. 3732, R.S. 1939; Wood v. Wagner Electric Corp., 197 S.W. (2d) 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W. (2d) 55; Gerdes v. Christopher & Simpson Iron & Foundry Co., 124 Mo. 347, 27 S.W. 615; Stevens v. Thompson, 175 S.W. (2d) 166; Britton v. St. Louis, 120 Mo. 437, 25 S.W. 366. (2) In a Workmen's Compensation proceeding the burden is on the claimant to show that the death or injury resulted from an accident arising out of and in the course of the employment. The claimant does not meet this burden by merely creating an equipoise of the evidence but must have a preponderance thereof and where the evidence is such that it would support either of two contradictory inferences respecting the ultimate facts there is a failure of proof. Delille v. Holton-Seeley Co., 334 Mo. 464, 66 S.W. (2d) 834; Duggan v. Toombs-Fay Sash & Door Co., 228 Mo. App. 61, 66 S.W. (2d) 973; Muesenfechter v. St. Louis Car Co., 139 S.W. (2d) 1102. (3) Where the employee is engaged at the time of the accident in a voluntary act not known to or accepted by his employer and outside of the duties for which he is employed the injury cannot be said to have been received in the course of his employment. Tabor v. Midland Flour Milling Co., 237 Mo. App. 392, 168 S.W. (2d) 458; Duggan v. Toombs-Fay Sash & Door Co., 228 Mo. App. 61, 66 S.W. (2d) 973; Ricketts v. Story Laundry & Dry Cleaning Co., 155 S.W. (2d) 536; Huskey v. Kane Chevrolet Co., 173 S.W. (2d) 637; Bayer Chemical Laboratory v. Industrial Comm., 366 Ill. 635, 10 N.E. (2d) 389. (4) Where an employee steps aside or deviates from his employment and engages in a matter which is purely his own, or where an employee engages in a matter which is primarily personal but in which some purpose of his employer may incidentally be served and while so engaged sustains an accidental injury, such injury does not occur in the course of his employment. Kinkead v. Management & Engineering Corp., 103 S.W. (2d) 545; McMain v. J.J. Connor & Sons Const. Co., 337 Mo. 40, 85 S.W. (2d) 43; Duggan v. Toombs-Fay Sash & Door Co., 228 Mo. App. 61, 66 S.W. (2d) 973; Bride v. Cathedral Art Metal Co., 66 R.I. 331, 19 Atl. (2d) 317; O'Keefe v. A. Friedrich & Sons, 22 N.Y.S. (2d) 402; Fox Brothers Hdwe. Co. v. Wilson, 206 Ark. 618, 177 S.W. (2d) 44; Barragar v. Industrial Comm., 205 Wis. 550, 238 N.W. 368; Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Parlen v. Williams & Co., 327 Penn. 579, 195 Atl. 40. (4) A violation by an employee of a known rule and direction prohibiting the doing of the thing which the employee was doing at the time of his injury places the employee outside the scope of his employment. Staten v. Long-Turner Construction Co., 185 S.W. (2d) 375; Kasper v. Liberty Foundry Co., 54 S.W. (2d) 1002; Miliato v. Jack Rabbit Candy Co., 54 S.W. (2d) 779; Lynch v. Tobin Quarries, Inc., 148 S.W. (2d) 80; Travelers Ins. Co. v. Taylor, 147 Fla. 210, 3 So. (2d) 381; Ginther v. Graham Transfer Co., 348 Penn. 60, 33 Atl. (2d) 923; Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W. (2d) 739.

Al F. Gerritzen for respondent.

(1) The findings and award of the Compensation Commission are conclusive on appeal, when supported by competent and substantial evidence on the whole record. Any conflict of testimony, if any, must be resolved in favor of the evidence which supports the findings of the Commission, and the Supreme Court must consider the evidence, together with all reasonable inferences to be drawn therefrom, in a light most favorable to support the award. Wood v. Wagner Electric Corp., 197 S.W. (2d) 647; Wamhoff v. Wagner Electric Corp., 190 S.W. (2d) 915; Kaiser v. Reardon Co., 195 S.W. (2d) 477; Sec. 3689, R.S. 1939. (2) An accident arises in the course of employment when it occurs within the employer's period of employment in a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment, or is engaged in something incident to such employment, and an injury suffered by employee while performing an act for the mutual benefit of employer and employee is usually compensable as arising out of and in the course of employment, even though the advantage to the employer is slight. Conflicting evidence as to the activities of a traveling salesman at the time of his death sustained an award on the grounds the accident arose out of and in the course of employment. McCoy v. Simpson, 139 S.W. (2d) 950; Beem v. H.D. Lee Mercantile Co., 85 S.W. (2d) 441; Sawtell v. Stern Bros. & Co., 44 S.W. (2d) 264; Schulte v. Grand Union Co., 43 S.W. (2d) 832; Thurber v. Allied Motors Co., 150 S.W. (2d) 1109; Kaiser v. Reardon Co., 195 S.W. (2d) 477; Wahlig v. Krenning-Schlapp Grocer Co., 29 S.W. (2d) 128; 71 C.J. 675, sec. 420. (3) Nash Brown, in permitting Walter Folle, an experienced driver, to drive the employer's automobile while Brown himself was present in said automobile on the occasion in question, did not thereby place himself outside the scope of his employment as a salesman for the employer, even though there was a verbal rule that the salesman alone was to drive the company car. Brown's permission to Folle to drive the company's car, was not the direct and proximate cause of the accident. The rear wheel coming off caused Folle to lose control of the automobile. Scharlott v. New Empire Bottling Co., 192 S.W. (2d) 853; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W. (2d) 1019; Edwards v. Al Fresco Advertising Co., 100 S.W. (2d) 513, Walton drove car instead of Edwards.

BARRETT, C.

On Saturday night, February 10, 1945, Nash Brown and his wife, Mary, and Walter Folle and his wife, Melba, went to the Chain Yacht Club, a branch of the St. Louis Boating Association, at 10200 Riverview on the Mississippi River. As they were returning to the Brown residence, 1949 Alice, about 1:30 Sunday morning, the 1939 Plymouth automobile in which they were riding collided with a telephone pole in the 9000 block on Riverview and Nash Brown died as a result of injuries received in the collision. Brown was employed as a salesman by Weber Implement and Auto Company and the Plymouth automobile belonged to his employer. Upon the theory that Brown was injured and died by reason of an "accident arising out of and in the course of his employment" (Mo. R.S.A. Sec. 3691) the Workmen's Compensation Commission made an award to his dependent wife and children of $11,650. Upon this appeal the employer, Weber Implement and Auto Company, contends that the dependents' evidence in support of their claim is so conflicting, contradictory and uncertain that this court is justified in not believing any of the evidence in which event there would be a total failure of proof. If this view is not accepted then the employer urges that there was not "competent and substantial evidence upon the whole record" (Const. Mo. Art. 5, Sec. 22) to support the claim and for that reason compensation should have been denied. In this connection it is urged that the employee, Brown, had deviated from his employment and was upon a purely personal pleasure trip, that the accident did not occur at a time or place when or where he was reasonably fulfilling the duties of his employment, or when he was engaged in some activity incidental to his employment which had a causal connection with his employment, injuries and death. It is urged that he was engaged in a purely voluntary act outside the duties for which he was employed and not known to or accepted by the employer and therefore his injuries did not arise in the course of his employment. At most, it is said, the evidence in this connection creates a mere equipoise and therefore the dependents failed to sustain the burden of proving that the accident arose out of and in the course of the employment. In the third place it is contended, even if the claim is otherwise compensable, that compensation should be denied because the evidence conclusively shows that Brown violated...