Conley v. Meyers

• Decision Date: 08 July 1957
• Docket Number: No. 1,No. 45993,45993,1
• Citation: 304 S.W.2d 9
• Parties: Sarah Pauline CONLEY (Dependent), Claimant, Respondent, v. Kenneth V. MEYERS, d/b/a Meyers Pontiac Company, Employer, and Hawkeye-Security Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

Page 9

304 S.W.2d 9

Sarah Pauline CONLEY (Dependent), Claimant, Respondent, v. Kenneth V. MEYERS, d/b/a Meyers Pontiac Company, Employer and Hawkeye-Security Insurance Company, Insurer, Appellants.

No. 45993.

Supreme Court of Missouri, Division No. 1.

July 8, 1957.

Richard P. Sprinkle, Sprinkle, Knowles & Carter, Kansas City, for appellants.

Walter R. James, R. Kenneth Elliott, North Kansas City, for respondent.

DALTON, Justice.

This is an appeal by the employer and insurer from a judgment of the Circuit Court of Clay County affirming an award of the Industrial Commission for $12,000 death benefits and $400 burial expenses to the widow and sole dependent of Jewel Edwin Conley, deceased.

Section 287.240(2) RSMo 1949 of the Missouri Workmen's Compensation Law, as amended Laws 1953, p. 530, V.A.M.S., provides for 'a single total death benefit' payable in weekly installments and, since the award here exceeds $7,500 exclusive of costs, it is immaterial that the statute further provides that 'on the death or remarriage of a widow, the death benefit shall cease unless there be other total dependents entitled to any unpaid remainder of such death benefit.' In this case there are no other dependents, but this court has jurisdiction of the appeal on the ground that the amount in dispute exceeds $7,500. Article V, Section 3, Constitution of Missouri 1945, V.A.M.S. Ossery v. Burger-Baird Engraving Co., Mo.Sup., 256 S.W.2d 805, 807; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046, 1050(1); Shroyer v. Missouri Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713, 715(9-12). Appellants' motion to transfer the cause to the Kansas City Court of Appeals is overruled.

In reviewing a Workmen's Compensation case we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Art. V, Sec. 22, Constitution of Missouri 1945. This does not mean that we may substitute our own judgment on the evidence for that of the Commission, however, we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421, 423.

The Industrial Commission, as a basis for its award, found that, on December 14, 1954, the deceased was an employee of Kenneth V. Meyers, d/b/a Meyers Pontiac Company; that he was working under the provisions of the Missouri Workmen's Compensation Law; and that, on said date, he sustained an accident in Clay County arising out of and in the course of his employment with said employer, 'causing injuries to his body which aggravated the aneurism that he had at the time of the accident and thereby causing said aneurism to increase in size and thereby hastening his eventual death, which occurred on April 27, 1955.'

Appellants contend (1) that the Industrial Commission erred in finding that the deceased employee sustained an accident on December 14, 1954, arising out of and in the course of his employment; and (2) that the Industrial Commission erred in finding that the deceased employee died on April 27, 1955, 'as the result of a ruptured aortic aneurism, and that his death was hastened as the result of injuries sustained in an automobile accident on December 14, 1954.'

A review of the evidence applicable to the issues is required. As to the first, no question is presented concerning the fact of employment or the occurrence of an accident. Appellants, however, contend that there was no showing that Conley, at the time of the accident, was in the course of his employment, that is, that he was on business for his employer. Appellants insist that the employee was on a personal errand for his own purposes at the time of the accident.

Conley was employed as an automobile salesman for new and used automobiles at a place of business referred to as a sales lot at the City of Riverside, in Clay County. The lot was known as the Motor Mart. It was located at the intersection of Highways Nos. 69 and 71. The business conducted there was an integral part of the employer's business in Platte City, some 15 miles to the north on Highway 69. Conley and his wife lived on the Motor Mart premises. 'He just sold cars just like any salesman would.' He traveled off the lot many times and 'sold cars any time he could.' 'He stayed open at the lot mostly until 9:00 o'clock in the evening.' He would take a car to the home of anybody interested in buying it.

On the evening in question, December 14, 1954, about 7:30 p.m., Conley's employer sent him from Riverside to Platte City to get a new 1955 Pontiac Sedan 'to show to some people that had previously been in the lot looking for a car of that type.' He was told to take the car and 'go to Linden, where these people had described where they lived, and see them.' They lived 'some place over there around Linden.' Linden is a community on Highway 169 in Clay County and is within the corporate limits of the City of Gladstone. In traveling from Platte City to Linden, the employer testified that one would ordinarily go to Nashua on 71 by-pass and then south on Highway 169 to Linden; that he had gone that way many times; and that that would also be the general route used by people of the employer's acquaintance, 'that's the way they would go.'

About 8:40 p.m., the same evening, December 14, 1954, as Conley was driving south in the southbound lane of Highway 169 in Clay County, he drove his automobile into the rear of an automobile stopped on the highway. The parked automobile was driven down the highway some 75 feet beyond the point of collision. There were skid marks on Highway 169 for 153 feet north from a point 10 feet north of the point of impact. Both automobiles were extensively damaged, including the front end and left side of the Pontiac Sedan and its steering wheel was bent. The collision occurred on the west side of Highway 169 at the north edge of the Shady Lane Drive intersection and within the City of Gladstone. While Linden was one mile north of the scene of the collision, both were within the City of Gladstone. Conley was taken by ambulance to Research Hospital and seven stitches were taken to sew up a cut on his right forehead. There was no testimony tending to show exactly where the parties lived that were interested in buying the Pontiac and there was no other testimony tending to show what work Conley was doing at the time of the accident, or concerning his purpose in being where he was when the collision occurred. Claimant proceeds upon the theory that Conley was either seeking the prospective purchaser, or that he was proceeding back to his place of business to close the Motor Mart at 9:00 p.m. Appellants construe the claimant's evidence concerning the direction of travel and the location of the accident as showing that Conley was proceeding toward North Kansas City on a mission of his own. Appellants also rely on the oral testimony of one Hyler, a claim adjuster, to the effect that he interviewed Conley after the accident and Conley told him 'he was going to North Kansas City to buy his wife a Christmas present' at the time he was injured. Reliance is put also on evidence tending to show that Conley had been drinking and was driving at high speed. The member of the Highway Patrol who interviewed Conley at the scene of the accident had detected the odor of alcohol. It is argued that, in view of the speed at which Conley was driving, he had no intention of stopping in the immediate vicinity of Linden or in contacting any prospective buyer. Appellants also say that the lapsed time from 7:30 to 8:40 p.m., easily discredits the theory that Conley was still seeking the prospective customer after the trip to Platte City and back to Linden. All of these matters were for the consideration of the Commission in determining the facts. There is no 'conclusive evidence of deviation,' although appellants present a rather extended jury argument to that effect. It is sufficient to say that the triers of the fact did not accept appellant's theory as true nor find the facts in accordance therewith. The credibility, weight and value of Hyler's oral testimony concerning the alleged statement by the deceased was for the triers of the fact. The Commission could believe or reject, in whole or in part, the testimony of the witness, whether contradicted or not; and they could draw such inferences as they deemed proper from the other evidence. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 624(4).

Finally, appellants say 'the record in this case is searched in vain for any evidence indicating that, at the time of the accident, the employee was on business for his employer.' With that statement we cannot agree. The phrase 'in the course of' employment is a test in reference to time, place and activity to determine if there is any work connection between the employment and the accident. Where such connection appears, a finding that the accident occurred in the course of employment will be sustained. See Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28. The rule is stated in Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 130(1, 2), as follows: 'It has been quite uniformly held that an injury arises 'out of' the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury; and that an injury to an employee arises 'in the course of' his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.' And see Spradling v. International Shoe Co.,...