OPINION
SMITH, J.
This
case arose before the Workmen's Compensation Commission
upon the claim of John H. Duggan against the Toombs-Fay Sash & Door Company, employer, and Lumbermen's Mutual Casualty
Company, insurer.
For a
statement in this case, we use the statement of the
appellants, as follows:
"This
is an appeal from a judgment of the Circuit Court of Greene
County, Missouri, Division No. 1, rendered at the January
Term, 1933, of said court, reversing and remanding an award
of the Missouri Workmen's Compensation Commission,
awarding compensation to appellant herein against
respondents.
"The
only testimony introduced before the
Commission was the evidence of appellant, John H. Duggan,
which, together with stipulations between the parties as to
formal matters and the nature and extent of the injury, makes
up the entire record, so far as the facts are concerned. The
real and principal question is as to whether or not the
accident in which appellant received the agreed injuries
arose out of and in the course of his employment. The
Commission found that the accident did arise out of and in
the course of the employee's employment and awarded
compensation. This award was reversed by the Circuit Court
and the cause remanded to the Commission.
"The
facts, about which we believe there is no dispute, are as
follows:
"It
was admitted that appellant was employed by respondent,
Toombs-Fay Sash and Door Company, on March 6, 1932, and that
on that date the parties were operating under the Missouri
Workmen's Compensation Act and that the respondent,
Lumbermen's Mutual Casualty Company, was the compensation
insurer for its co-respondent and that on that date the
appellant sustained the personal injuries for which he filed
his claim. It was further admitted that on the date of the
first hearing, July 12, 1932, appellant was still temporarily
totally disabled as a result of the injuries he sustained and
that his average weekly wage was $ 28.85 and his rate of
compensation, if entitled to compensation, was $ 19.23 per
week. It was further admitted that the employer had notice of
the accident, as required by the Act, and
that the claim for compensation was duly filed in time with
the Commission.
"Mr.
Duggan, the only witness, then testified that he lived at
1149 Ferguson Avenue in Springfield, Missouri, and was a
salesman for the Toombs-Fay Sash and Door Company, the
employer; that his employer furnished him an automobile for
use as a salesman, which was owned by the employer and all
the expenses of which were paid by the employer; that he used
it in his business as a traveling salesman and was at liberty
to use it for his personal convenience when not engaged about
his business; that he called on the trade in a territory
outside of the City of Springfield. He testified he had no
regular hours of employment, but just keep going all the
time, except that he didn't call on any trade on Sunday.
He testified further that he did work regularly on Sunday, in
that he fixed up his catalog and price lists on Sunday and
each Sunday was required to and did fill out and mail advance
cards to the customers he intended to call on that week. That
these advance cards were postals to his customers, advising
them as to what time he would call at their place during the
week and that he was required to send these cards out in
advance of his trips by his employer.
"Mr.
Duggan then testified that on Sunday afternoon about five
o'clock, March 6, 1932, he suffered an automobile
accident and received the injuries agreed upon. This accident
occurred at the intersection of Grand Street and Campbell
Avenue in the City of Springfield.
"He
testified that on that particular Sunday, March 6th, he fixed
up his catalogs, etc., and made out his advance cards before
noon dinner, which was eaten by his family late that day.
That after dinner he started to go to the post office to mail
them which was where he generally mailed the cards, and then
as he was ready to start, thought to and did ask his wife and
her uncle to go with him on the trip to mail the cards for
the ride. That they left about four o'clock and instead
of going to the post office, he drove north to Grand Street
from his home and then east on Grand Street in the direction
of the State Teachers College, looking for a mail box from
which mail was collected on Sunday. He found such a mail box
back of the Teachers College on Kingshighway and Lombard, a
short distance north of Grand Street and mailed his advance
cards in this box. He testified that his purpose of making
the trip 'was strictly to mail these cards.'"
"He
further testified that when he started out, he had no
particular intention of going any place but to mail the cards
but that after he mailed them, they stopped in at a
friend's house, who lived on the opposite side of the
street from the mail box and only three or four doors north
thereof. That they first conceived the idea
of stopping at this friend's house after they got over
there and saw they were so close to it. At the friend's
home they played some bridge and then left to go home about
five o'clock, having stayed at the friend's house but
a short time. After they left the friend's house, they
went back on Kingshighway to Grand Street and west on Grand
toward Mr. Duggan's home, such being the shortest route
to his home, except that they went one block south out of
their way to pick up Mr. Duggan's son, who was at a house
on Delmar, and after picking up the boy, they came back to
and were going west on Grand Street, the most direct route
home, when the accident happened.
"Mr.
Duggan then testified to his medical expenses, which was all
the evidence at the original hearing.
"On
this hearing, Referee Lumke, before whom the matter was
heard, found that appellant was injured in an accident
arising out of and in the course of his employment; that the
employer had notice of the accident and that the claim was
filed in time and in due course; that the employee had been
temporarily totally disabled up to the time of the hearing
and of the award, and that this disability would continue for
some time in the future, which latter facts had been agreed
to, and awarded the employee compensation
for 18-2/7 weeks at $ 19.23 per week, or a total of $ 351.64,
and the value of necessary medical aid not furnished by the
employer or insurer, amounting to $ 379, or a total amount of
compensation and medical aid of $ 730.64. Employer and
insurer filed an application for review by the full
Commission and on such review, the full Commission, on
September 20, 1932, modified the award by allowing
compensation for nineteen weeks, or $ 365.37, plus the value
of medical aid amounting to $ 379 or a total of $ 744.37,
same being a temporary or partial award, because the extent
of the permanent disability could not, at that time, be
determined, although by then the temporary total disability
had been determined and agreed upon as per the amount found
by the full Commission on review.
"At
the request of the employer and insurer, respondent's
herein subsequent hearing was then held on November 15th, for
the purpose of making the temporary award final.
"At
this last hearing it was agreed that the permanent disability
suffered by the employee as a result of the accident of March
6, 1932, was ten per cent loss of use of the left leg at the
hip, such stipulation being made without prejudice to the
rights of any of the parties to appeal from the final award
and no further facts were introduced.
"Following
this agreement and on the 29th day of November, 1932, the
full Commission issued its final award, awarding appellant
herein the sum of $ 379 for medical aid not furnished by the
employer and insurer, and the sum of $
398.06 for compensation on account of the permanent injuries
or a total amount of $ 777.06. We understand there is no
dispute as to this amount, the Commission finding that the
accident did arise out of and in the court of the
employee's employment.
"This award of the Commission, based on the above facts,
was reversed and remanded by Division Number 1 of the Circuit
Court of Greene County, Missouri, on the appeal of the
employer and insurer, respondents in this court, the courts
in effect holding that the accident did not arise out of and
in the course of the employee's employment."
After
the testimony had been submitted to the trial court, that
court in its memorandum opinion set out clearly the testimony
of the case with an analysis of the same, which judgment is
as follows:
"This
case is before the court on appeal by defendant and insurer
from award of the Missouri Workmen's Compensation
Commission, made November 29, 1932; allowing plaintiff
compensation for injuries sustained by him in an automobile
accident on March 6, 1932.
"Plaintiff
was allowed for medical aid the sum of $ 379 for permanent
partial disability the sum of $ 19.23 per week for 20.7
weeks; said payments to begin as of March 6, 1932; the award
being made against defendant and its insurer, Lumbermen's
Mutual Casualty Company.
"Aside
from the claim, in conventional form, and answer of denial
duly filed; notice of hearing; award of the commission
notice of appeal; the record certified to this court as...
