Coy v. Sears, Roebuck & Co., 43003

• Decision Date: 09 January 1953
• Docket Number: No. 43003,No. 2,43003,2
• Citation: 363 Mo. 810,253 S.W.2d 816
• Court: Missouri Supreme Court
• Parties: COY et al. v. SEARS, ROEBUCK & CO

Page 816

253 S.W.2d 816

363 Mo. 810

COY et al. v. SEARS, ROEBUCK & CO.

No. 43003.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1953.

Lathrop, Woodson, Righter, Blackwell & Parker, Winston H. Woodson, William M. Stapleton, Kansas City, for appellant.

Robert A. Schroeder, Laurence R. Smith, Ben W. Swofford, Kansas City, Maurice Pope, St. Joseph (Swofford, Schroeder & Shankland, Kansas City, of counsel), for respondents.

BARRETT, Commissioner.

Richard Coy was fatally injured on Friday, April 2, 1948, about 10:45 p. m., when his automobile, traveling south on Sixth Street in St. Joseph, collided with a freight train. Richard was employed by Sears, Roebuck and Company, and upon the theory that he was an 'employee' at the time of his fatal injury his dependent wife and minor daughter instituted this claim for the death benefits provided by the Workmen's Compensation Law. V.A.M.S. Sec. 287.010 et seq. The Industrial Commission has found that he was an 'employee' at the time and has made an award of $12,508. The decisive question before the Industrial Commission and upon this appeal is whether he was an 'employee' at the time of his fatal injury. Sears, Roebuck contends that he was not subject to its control at the time, that it had no right to control and did not exercise control over him and, therefore, he was not an 'employee.' If he was an employee the appellant does not question that the fatal accident arose out of and in the course of his employment. Coy's death occurred prior to the effective date of the amendment of 1947, Laws Mo. 1947, Vol. II, p. 438, and it is claimed, in the second place, if he were an employee that his annual earnings exceeded the sum of $3600 and for that reason he was excluded as an employee from the provisions of the law. 1939 Mo.R.S., Sec. 3695, V.A.M.S. Sec. 287.020. The ultimate question upon this appeal is whether the Commission's findings that he was an employee and that his average annual earnings did not exceed the sum of $3600 is supported by competent and substantial evidence upon he whole record. Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623; Heisey v. Tide Water Oil Co., Mo.App., 92 S.W.2d 922.

Richard was employed by Sears, Roebuck and Company in September 1945 as a receiving clerk. In 1947 he was transferred to the position of 'inside salesman' of hardware, sporting goods and automobile accessories. On the 1st day of March 1948 he was promoted to the position of 'inside and outside salesman' of electrical appliances. Under his latter appointment his sales territory of Sears' appliances was anywhere in St. Joseph. He was paid a commission of five per cent on all sales except mail order sales, for which he received a commission of two and one half per cent, and against which commissions he was allowed a drawing account of $45 per week. The regular working hours of Sears' employees were from 8:30 to 5:30 daily, six days a week, not including Sundays, and it is the specific claim of Sears that Coy's services and employment fell into two categories, those he was required to perform from 8:30 to 5:30 and 'those sales which he was permitted to make after store hours on his own initiative--'if he wanted to." It is said that a different relationship or status existed and that he was not an employee when he was soliciting and attempting to make sales after store hours, under whatever circumstances he chose, on his own initiative.

On April 2nd, 1948, he worked in the store until 5:30. His wife met him at that time and, after doing some shopping, they ate dinner at the 'Bucket Shop' and arrived home at 7 o'clock. About 8 o'clock Richard left home with his order book and catalogue, after asking his wife to go with him. About 10:15 he called and informed her of his destination. The day before he had talked to a bartender, Leroy Frank Clark, about purchasing a washing machine and on April 2nd called and made an appointment to see him at his place of business, the B & M Bar, 2301 Sixth Street, that evening. Ten or fifteen minutes after calling his wife he was traveling south on Sixth Street, north of and on the route to the B & M Bar, when his automobile collided with the train. His Sears order book was found in his pocket, and there were other Sears' supplies in his automobile.

Generally, in determining whether a person is an employee within the meaning of the compensation law, the courts have said that the relationship of master and servant must exist, and the test of the existence of the relationship is the right to control the means and manner of the service as distinguished from controlling the ultimate results of the service. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; McQuerrey v. Smith St. John Mfg. Co., 240 Mo.App. 720, 216 S.W.2d 534. But every case has been decided on its particular facts, and while the element of control is of the greatest significance in determining the existence of the required relationship, the fact of control standing alone is not conclusive. Garcia v. Vix Ice Cream Co., Mo.App., 147 S.W.2d 141, 143. The compensation law does not employ the terms 'master' and 'servant' and it would probably be more accurate to say that the broader status or relationship connoted by 'employer' and 'employee' must obtain between the parties. V.A.M.S. Secs. 287.020, 287.030, 287.040. There is some analogy, as the appellant urges, in the negligence cases in which the employer's liability to third persons is dependent upon the applicability of the common law doctrines of respondeat superior and independent contractor, Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381, but it was never contemplated that liability under the compensation law should be limited to those common law concepts, even though the relationship of employer and employee must in fact exist. 'The questions of who is an employer and who is an employee, under compensation acts, do not usually depend upon commonlaw principles (although they may be considered in their construction) but depend instead upon the terms and definitions of such Act.' Loudenslager v. Gorum, 355 Mo. 181, 187, 195 S.W.2d 498, 500. Despite the analogies, the common law concepts are not sufficiently broad to encompass employments and professions now clearly within the terms and protection of the compensation laws. 1 Larson, Workmen's Compensation, Sec. 43.50, p. 632. New and different business methods and techniques change the basic facts and thus expand the implication of the fundamental terms employed in the law. Gordon v. New York Life Ins. Co., 300 N.Y. 652, 90 N.E.2d 898. There are limits, however, beyond which the provisions of the compensation law may not be stretched by interpretation, and the relationship and status of employer and employee must in fact exist. As suggested, an employee may be within the provisions of the Workmen's Compensation Law part of the time, and at other times not within its protection, and ordinarily, in this connection, the relationship of employer and employee is suspended during the period the employee is off duty. 58 Am.Jur., Secs. 84, 224, pp. 637, 729. However, one may be an employee of the same employer in a dual capacity, Cameron v. Pillsbury, 173 Cal. 83, 159 P. 149, and an injury sustained outside regular working hours may nevertheless be compensable in some circumstances, particularly if the employee was at the time engaged in some service for the benefit of the employer in connection with his regular duties. 58 Am.Jur., Sec. 224; Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454. When the control test is applied, it is the ultimate right to control and not the overt exercise of that right which is decisive. 1 Larson, Workmen's Compensation, Sec. 44.

As an 'inside salesman' Richard's sales were all made within the store, during the regular working hours of 8:30 to 5:30. After his promotion to 'inside and outside salesman,' the manager said that he was authorized to sell appliances outside the store. In his new position he was required to own an automobile and carry liability insurance. He was the only employee authorized to work and sell merchandise both inside and outside the store. While it was insisted throughout the trial that Richard's working hours were restricted to the regular hours of 8:30 to 5:30, Sears, in making its admissions before the referee, stipulated that if Richard had procured an order after regular hours or on Sunday Sears would have filled the order, but it was insisted, in the stipulation, during those hours that he was not acting for Sears but was 'merely acting, so that he could, on those days, sell more merchandise and increase his earnings.' On this particular point the store manager said,

'Q. Let me ask you this question--he was permitted by your company to go out and make sales for the company after the store closed, wasn't he? A. Yes.

'Q. And if he wanted to go out and make a sale at 11:00 or 12:00 o'clock at night, there wasn't any direction or rule of your company that would have denied him that right, was there? A. That is right.

'Q. And after March 1st, 1948, your company did not put any restrictions on Mr. Coy, as to the hours he might work, did they? A. No, they did not. * * *

'Q. Now, assuming that Mr. Coy received an order given to him on a Sunday, would such an order have been refused by your...