Coonce v. Farmers Ins. Exchange

• Decision Date: 03 April 1950
• Docket Number: No. 21372,21372
• Citation: 228 S.W.2d 825
• Parties: COONCE v. FARMERS INS. EXCHANGE.
• Court: Missouri Court of Appeals

Page 825

228 S.W.2d 825

COONCE v. FARMERS INS. EXCHANGE.

No. 21372.

Kansas City Court of Appeals, Missouri.

April 3, 1950.

Paul C. Spinkle, William F. Knowles, Sprinkle & Knowles, all of Kansas City, for appellant.

Norman S. Howell, Kansas City, for respondent.

CAVE, Judge.

This is an appeal from the circuit court of Clay County affirming an award of the Workmen's Compensation Commission in favor of the claimant (employee).

It is admitted that claimant was an employee of appellant and that both were under the provisions of the Compensation Act; and that he had an accident and sustained certain injuries. The only question presented on the appeal is whether the accident arose out of and in the course of his employment. This assignment is based on the contention that the evidence clearly discloses that the employee was guilty of such a degree of intoxication as to render him incapable of performing his duties for his employer at the time of the accident, and that the commission erred in not so finding.

The record discloses that the employee was a claim adjuster for the appellant and had been in this line of employment for several years. In connection therewith he operated an automobile and traveled in a North Missouri territory. His normal working week was from Monday morning until Friday evening. The accident occurred on Friday, February 20, 1948, about 6:30 or 7 p. m. During the day the employee had made calls at Renick, Moberly, Carrollton and Richmond, arriving in Excelsior Springs about 4:30 in the afternoon, where he interviewed a Mr. Lodwick concerning a claim in which the appellant was interested. On his arrival in Excelsior Springs he telephoned Mr. Lodwick who advised him that he would meet him at the Oaks Hotel shortly thereafter. While waiting for Mr. Lodwick claimant met an acquaintance, one John Cole, and they repaired to the Coon Hunt Room in the Oaks Hotel and each had one Scotch whiskey highball before Lodwick arrived. After Lodwick arrived each of the men had another whiskey highball. While they were in the Conn Hunt Room claimant purchased a bottle of Scotch whiskey to bring to his home in Kansas City. He was not familiar with the brand and opened the bottle and each of the men tasted it merely for quality. They remained there for about twenty or thirty minutes and all three left the hotel together. Both Mr. Lodwick and Mr. Cole testified that the claimant was not intoxicated when he got in his car and left for Liberty, where he planned to interview Mr. Hale concerning another claim in which the appellant was interested. Claimant drove in a westerly direction on Highway 69 towards Liberty and about six or seven miles west of Excelsior Springs his car collided with a truck and he received the injuries complained of. Claimant testified that he had not consumed intoxicating liquor of any kind on the day of the accident prior to his arrival in Excelsior Springs; that he drank none after leaving there, and that he was not intoxicated at the time of the collision.

Appellant produced two witnesses who were riding in an automobile immediately behind the one operated by the claimant, and they testified that claimant's automobile was 'weaving on the highway' as he drove along and at times would get partly on the wrong side of the road and at other times would get over against the curbing on claimant's right-hand side, and that this condition continued for a distance of approximately three miles before the accident occurred.

Mr. Curtis, of the Highway Patrol, testified that he went to the scene of the accident and found claimant lying on the ground on the north side of the pavement in an unconscious condition. He inspected claimant's car, and testified: 'There was three empty coke bottles, one not completely empty but almost so, and I also found a one-fifth of Scotch whiskey of which about one drink or one jigger of whiskey was gone.' That he smelled of the coke bottle which was not empty and that it had the odor of whiskey in it; that the only odor of whiskey he detected about the car was where the coke bottle had turned over on...