"On Thursday November 13, 1947, at approximately 6:30 P.M. Roland P. Butler was severely injured in an automobile accident. He died about an hour later. The employer's report of the accident says that 'deceased was driving his (own) automobile along Highway No. 460 going west, and collided with the rear of a large truck ahead which was also headed west.' The collision occurred about four miles west of Windsor between that town and Zuni. The town of Ivor is on the same highwaysome five miles west of Zuni. The distance between Ivor and Windsor is eleven miles.
"The sole claimant is the surviving widow, Mrs. Effie Nelms Butler. The average weekly wage was sufficient to yield the maximum rate of compensation.
"The defenses interposed are (1) that the accident did not arise out of and in the course of the employment; (2) that claimant had voluntarily deserted or abandoned deceased at the time of the accident and thus not conclusively presumed to be a dependent under Section 40 of the Act [Code 1942, § 1887(40)]; and (3) that deceased was guilty of wilful misconduct as defined by Section 14 of the Act [Code 1942, § 1887(14)] in that he was violating a rule of his employer at the time of the accident.
"The accident, of course, is admitted, the most troublesome question being whether it arose out of and in the course of the employment. On this point, aside from some undisputed facts, the evidence consists almost entirely of uncorroborated hearsay, much of it quite confusing and somewhat inconsistent.
"Deceased was, and had been for something over three years, a route salesman for his employer--a manufacturer of bread, cakes and other bakery products. His duties were to sell and deliver (and collect therefor) his employer's products to restaurants and retail grocery stores located on a fixed route which included, among others, the towns of Windsor, Dendron, Smithfield, Zuni and Ivor. To perform these duties his employer furnished him a truck and paid for the cost of its operation. The compensation of deceased was a salary of $35.00 a week plus a commission of ten per cent on sales in excess of $350.00 a week. It was the practice of deceased to leave the truck at the completion of each day's work at a filling station in Windsor operated by Frank L. Brown. Each morning about four o'clock the truck would be supplied by employer's supply truck from Norfolk with products for sale that day. Deceased would then start out on his route and normally would complete
his day's work between three and five o'clock in the afternoon. Deceased had been instructed by his employer that he was not to use his personal automobile in his business, the truck being furnished him for that purpose. As has been stated, however, when the accident occurred deceased was driving his own car. He had only owned a car for about eight months.
"The above facts are undisputed.
"The theory of claimant is that at the time of the accident deceased was on his way to Zuni and Ivor for the purpose of supplying his customer's needs or collecting from them for products previously delivered or for both purposes. The evidence bearing on this theory will now be considered.
"Claimant testified that she operated a store two miles from Windsor on the Smithfield Highway (No. 258), and that although they had not been living together for several months she was a customer of deceased and saw him frequently; that he had supplied her with bread at two o'clock in the afternoon of November 13th, at which time he was driving the truck, and that he had returned about six o'clock, driving his own car, for the purpose of discussing a plan to meet her in Norfolk the next day at four to see a physician; that on the second visit he mentioned that he was going to Windsor, and then to Iver to 'service' Goodman Horne and to collect from him--again he mentioned that he was going to collect at Zuni--and again that he was going to try at these points to 'work off' some cakes that he had on hand; that he wanted to make a deposit in bank the next day as he had not made his deposit on Monday; that he had owned a car for only eight months and had frequently used this car in his work; that when deceased was killed he had his money pouch on him containing about $120.00; that deceased lived with his uncle a mile and a half from Windsor on Route 258. Reluctantly it must be said that claimant's demeanor on the stand was not impressive.
"Claimant's witness, John W. Warren, operates a filling station and restaurant at Kinser's Kabin, two miles east of Windsor on Route 460. He stated that 'around sixor seven o'clock' in the afternoon on November 13th deceased came to his place to deliver bread; that he was there for about half an hour (getting his supper there as he frequently did) and that he overheard him say to his (Warren's) wife that he was going to 'deliver some bread'; that deceased generally delivered bread to Warren from his truck around four o'clock but sometimes as late as six or seven; that he did not know whether deceased was driving the truck or his car on this particular occasion.
"Mrs. John W. Warren testified to the same general effect as her husband except that deceased told her (the remark that Mr. Warren overhead) that he had to go to Zuni to deliver some bread.
"Relative to the testimony of Mr. and Mrs. Warren the comment is made that when the accident occurred, deceased then not having reached Zuni or Iver, there was no bread in his car. Nothing was said to these two about collecting or about cakes.
"Claimant introduced Frank L. Brown, proprietor of the filling station at Windsor where deceased stored his truck. He testified that deceased drove in with the truck a little after six in the afternoon of November 13th and instructed that it be filled with gas; that deceased parked the truck at Brown's place each afternoon, his personal car being kept there during the day; that on this occasion deceased transferred 'something' from the truck to the car and drove on off saying he had to run up to Ivor; that each day deceased would drive in with his truck, park it, get in his own.car and depart.
"The sequence of the evening stops at claimant's store, the Warren's place (Kinser Kabin) and Brown's filling station at Windsor is difficult to determine from the testimony (they all fix. the time at 'about six' or a 'little after six'), but it is not believed to be material. It is more probable, however, that after leaving Kinser's Kabin deceased went to Brown's place, left his truck there, got in his personal car, visited his wife at her store, and then started out for Iver.
"Earl Kello stated that he operated a 'wrecker', and on the day of the accident he brought in the car of the deceased; that he noticed four or five boxes in the back of the car and that he put them in his car and delivered them to 'some of the Nolde men the next day'; that Trooper Anderson reached the scene of the accident before he did.
"Ray Rainey, a witness for defendant, said that he operated a store at Zuni and was a customer of deceased; that his bread and cakes were always delivered in the morning before he got to the store; that nothing was ever delivered in the afternoon; that deceased always made his collections on Monday afternoon.
"Roland Nelms, a stepson of claimant, said that he went to the scene of the accident and saw some boxes in the back of the car and that deceased had his money pouch on him. The other facts to which he testified he admitted came to him by 'word of mouth'.
"Defendants introduced Geo. F. Nolde, Manager of the employer's Norfolk branch, who had general supervision over deceased. He stated that deceased had been employed about four years; that their men were not permitted to deliver bread and cakes nor to make collections in their own cars and that deceased had been so instructed by him when he was employed; that the trucks were furnished them for this purpose and they were to be so used; that the expense of their operation was borne by the employer; that he did not know that deceased ever used his own car in his work; that deceased had only had his own car for eight months; that while deceased did not have any definite hours of work he was supposed to get his work done as early as possible, and that 'roughly' his hours were from four or five o'clock in the morning until three to five o'clock in the afternoon; that one package of cakes was brought to him from Kello's garage the day after the accident.
"Emerson Presson drove the employer's truck that supplied the truck operated by deceased with bakery products eachnight at Windsor. After the death of the deceased he took over his route. Presson testified that as route salesman he started out 'around 4:30' in the morning (as did deceased) and if he was not 'held up' he finished by two in the afternoon;...
