Dehoney v. B-W Brake Co.

• Decision Date: 13 September 1954
• Docket Number: No. 1,B-W,No. 44075,44075,1
• Citation: 271 S.W.2d 565
• Parties: Bennetta B. DEHONEY, Respondent, v.BRAKE COMPANY, Employer and Travelers Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

Page 565

271 S.W.2d 565

Bennetta B. DEHONEY, Respondent, v. B-W BRAKE COMPANY, Employer and Travelers Insurance Company, Insurer, Appellants.

No. 44075.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954.

Clay C. Rogers, Lyman Field, James W. Benjamin, Rogers, Field & Gentry, Kansas City, for appellants.

Stanley J. Siegel, Sylvester Powell, Jr., Kansas City, for respondents.

VAN OSDOL, Commissioner.

This is a workmen's compensation case.

A referee made an award in favor of employer B-W Brake Company, a corporation, and its insurer, and against claimant, the widow and guardian of the minor children of Flavius J. DeHoney, deceased employee. Upon review, the Industrial Commission reversed the referee's award and made the general finding that Employee sustained an accident on August 7, 1951, arising out of and in the course of his employment with B-W Brake Company, resulting in his death on the same day. More specifically, the Commission found that 'Employee, a traveling salesman, was driving into tourist court (motel) where he had a reservation for sleeping accommodations while attending to his employer's business while on the road, when his automobile collided with another vehicle.' Total death benefits of $12,000 were awarded by the Commission, and the additional sum of $150 was allowed for burial expense. Upon appeal, the Circuit Court of Jackson County by its judgment affirmed in all respects the award of the Commission. Employer and its insurer have appealed from the Circuit Court's judgment.

Herein upon appeal the question for our decision is whether the Commission's findings and award were supported by competent and substantial evidence upon the whole record. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Const. Art. V, Sec. 22, V.A.M.S. However, before examining the evidence, we pause to observe that it has been frequently said an accident resulting in injury (or death) to an employee arises 'out of' the employment, Section 287.120 RSMo, V.A.M.S., when there is 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. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530; Karch v. Empire District Electric Co., 358 Mo. 1062, 218 S.W.2d 765; Sanderson v. Producers Commission Ass'n., 360 Mo. 571, 229 S.W.2d 563; Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497. But it is thought that no all-embracing definition of the phrase 'arising out of and in the course of his employment' has yet been framed. Every case involving the phrase should be decided upon its own particular facts and circumstances and not by reference to some formula. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Goetz v. J. D. Carson Co., supra; Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421.

Employee, Flavius J. DeHoney, had been employed by Employer, B-W Brake Company of Kansas City, since about 1942. Employer was engaged in the business of 'brake service and supplies.' Employer distributed frictional materials such as clutches and power devices for heavy-duty automotive equipment. Employee had worked in Employer's 'parts' department, until about a year and a half before the accident, and then Employee was put 'on sales.' His principal duties were making sales, building up 'good will', and developing new accounts. He worked principally in Kansas City, but he also traveled and worked outside of the City. On the expeditions without the City, he would 'make up his own route, people that he would want to call on.' He called on automotive dealers, car agencies, trucking agencies, and industrial and commercial establishments in Kansas and Missouri, within a radius of two hundred miles from the City--there was no special territory to go on at any special time. He was paid a straight salary, and travel expense. He owned his own automobile, and was periodically reimbursed for the items of expense in operating the car. He 'just sort of free-lanced' in development of the trade territory. Sometimes he would be away for as much as four days. Sometimes he went on trips for Employer without any notice of destination. Employer's president said, 'I trusted him, allowing him to use his head, thinking he was as much interested in the building of the business as I was.' Employee was advanced or reimbursed for expense, 'hotel, food and so forth', according to the expense reports he turned in to Employer.

In July 1951, the Kaw River valley was inundated by disastrous floods. Sunday, August 5th, Employee made plans to visit the areas at Topeka and Lawrence and to analyze the effect of the floods. As a salesman he had not visited the 'trade' in those areas since the preceding April. He talked of making a trip to Topeka. He did not plan to take his wife along, as he sometimes did. He said, "Well, not this time because it is going to be a hot long dirty job. I am going to be working late and early, and I wouldn't know how much time I would be able to spend with you." He was going to a lot of places in Topeka, but the 'trucks and things would be out, just like our trucks were here, where they tried to get them out of the flood.' He also planned to go to Lawrence, if time permitted, 'and I believe he mentioned Manhattan.'

Employee left his home at ten-thirty or eleven o'clock the morning of Monday, August 6th. He took 'just work clothes--slack pants and wash things.' He had theretofore called Employer's president who testified that he had been endeavoring to find out how much equipment had been damaged in the flooded area along the river banks at Lawrence and Topeka. 'We hadn't been out in that territory and had been very busily engaged in Kansas City proper and he (Employee) thought it would be a good idea to find out how much equipment had been ruined out along the river in Topeka and Lawrence and the little towns along the flooded area. * * * I told him I thought it would be a very good idea. He said then, with my permission, he would go on the trip and had to have some money. I gave him $50.00 advance account--.' On this particular project, Employee would be 'just as likely' working at night as in the daytime, because 'they were working day and night' in uncovering and recovering materials.

Employee was next seen that day during the lunch hour in a restaurant in Kansas City. He said to a friend that he had to be in Topeka that evening--he was in a hurry.

Employee 'registered in' at the White Eagle Motel two and two-tenths miles south of Topeka. This was in the early afternoon of the same day, August 6th. He paid for two nights lodging in advance. He took the key, inspected the room, and departed, saying he would 'be here selling for two days.' He called on a regular customer, Mosby-Mack Motor Company of Topeka, in the afternoon between three-thirty and five o'clock. Mosby-Mack's 'parts clerk' was busy. Employee said,

"I see you are busy, I'll see you tomorrow." Mosby-Mack's clerk testified that after the flood Mosby-Mack's place of business continued to be 'officially' open from seven in the evening until two the following morning, 'but sometimes when we were busy we didn't get away from work until four or five o'clock in the morning.'

At about twelve-thirty in the morning of August 7th, Employee was driving north on U. S. Highway No. 75, a four-lane, north-south highway with sodded medial strip. He turned his automobile westwardly toward the White Eagle Motel, and as he moved across the west side of the highway his automobile was struck by a southbound motor vehicle. He was fatally injured. Papers were blown all around the scene of the accident. The papers were definitely connected with Employer's business. A 'couple of sales grips' were inside the demolished car. The grips were those normally carried by Employee in his territory; 'what was left of them contained the remains of catalog sales information.'

Later, at the request of claimant, a competent investigator tried to find out just what Employee was doing during the approximate seven and one-half hours between the time of his call at the place of business of Mosby-Mack and the time of the accident. The investigator had been supplied with a list of the customers on whom Employee regularly called. No information was obtained as to Employee's activities during the stated interval of time.

Employer introduced into evidence a part or segment of a road map, the map being of the type prepared for...