Edwards v. Ethyl Gasoline Corp.

• Decision Date: 25 January 1938
• Docket Number: 35315
• Citation: 112 S.W.2d 555,342 Mo. 98
• Parties: Mary E. Edwards and Walter J. Edwards v. Ethyl Gasoline Corporation, Employer, and Travelers Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

112 S.W.2d 555

342 Mo. 98

Mary E. Edwards and Walter J. Edwards v. Ethyl Gasoline Corporation, Employer, and Travelers Insurance Company, Insurer, Appellants

No. 35315

Supreme Court of Missouri

January 25, 1938

Appeal from Jackson Circuit Court; Hon. Darius Brown Judge.

Affirmed.

Mosman Rogers, Bell & Buzard for appellants.

The commission erred in admitting the statements made by Edwards prior to the time the fatal accident occurred. Smith v Levis-Zukoski Merc. Co., 14 S.W.2d 470; Whimster v. Holmes, 164 S.W. 236; State ex rel. Kurz v. Bland, 64 S.W.2d 638; Woods v. So. Ry. Co., 73 S.W.2d 374; Renfro v. Central Coal & Coke, 19 S.W.2d 766; Haines v. Railroad, 185 S.W. 1187; C. I. T. Corporation v. Byrnes, 38 S.W.2d 750; Clay v. Walker, 6 S.W.2d 961; Payne v. Payne, 57 Mo.App. 130. The statements of the deceased raised only a presumption, which disappeared in view of the undisputed evidence. Schneider on Workmen's Compensation Law, sec. 284; Reimers v. Proctor Pub. Co., 89 A. 931; Mockowik v. Railroad Co., 94 S.W. 256, 196 Mo. 550; Jones on Evidence (2 Ed.) 509; George v. Mo. Pac. Ry. Co., 251 S.W. 729; Frye v. St. Joseph Ry., L. H. & P. Co., 99 S.W.2d 540; Ross v. St. Louis Dairy Co., 98 S.W.2d 717. The testimony of one witness, that Mr. Edwards was on company business, cannot prevail where the undisputed evidence shows he was violating the orders of his employer. Schneider on Workmen's Compensation, sec. 284; Kasper v. Liberty Foundry Co., 54 S.W.2d 1002. The award and judgment is erroneous in that it is based upon a salary of $ 175 per month. Travelers Ins. Co. v. Davis, 42 S.W.2d 945; Ropp v. Moon Bros. Mfg. Co., 44 S.W.2d 889; Sec. 3320 (c), R. S. 1929.

Nelson S. Riley and Roberts & Tracewell for respondents.

(1) The commission properly found from competent and substantial evidence that Edwards was on the Ethyl Gasoline Corporation's business at the time of his death. C. J., 22, sec. 535, p. 448; Haines v. C., R. I. & P. Ry., 193 Mo.App. 453, 185 S.W. 1187; Greenleaf on Evidence, sec. 108; Vaughan v. Frisco Ry., 164 S.W. 144; Bradley v. Modern Woodmen of America, 146 Mo.App. 428, 124 S.W. 69; Royle Mining Co. v. Fid. & Cas. Co., 142 S.W. 438; State v. Lockett, 168 Mo. 480, 68 S.W. 563; Jewell v. Excelsior Mfg. Co., 166 Mo.App. 555, 149 S.W. 1045; 3 Wigmore on Evidence, sec. 1745. (2) The commission properly found from competent and substantial evidence that Edwards was within the course of his employment at the time of his death. Metting v. Lehr, 32 S.W.2d 121; Fisher v. Stephens College, 47 S.W.2d 1101; Sawtell v. Stern Bros., 44 S.W.2d 264; Howes v. Stark Bros., 22 S.W.2d 839; Kasper v. Liberty Foundry, 54 S.W.2d 1002; Reid v. Sensenbaugh, 86 S.W.2d 388. (3) A finding of the commission is a finding of fact, and is as conclusive as would be the finding of a jury, if supported by any substantial and competent evidence. Reid v. Sensenbaugh, 86 S.W.2d 388. (4) The Compensation Commission properly arrived at the amount of the judgment and award. Mo. Workmen's Compensation Law, sec. 3320.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

L. S. Edwards a resident of Kansas City, Missouri, was a "field representative" and "salesman" for the Ethyl Gasoline Corporation. He worked out of and under the supervision of the division offices at Kansas City. Edwards was killed at about seven p.m. September 5, 1934, near Coffeyville, Kansas, when an automobile which he was driving collided with another automobile and was destroyed by fire. His widow, Mary E. Edwards, and minor son, Walter J. Edwards, made claim, under the provisions of the Workmen's Compensation Act, for compensation, on account of his death. Upon a hearing on the claim the Compensation Commission made an award in favor of claimants, allowing $ 150 for burial expenses, and death benefits in the amount of $ 8076 payable to the widow Mary E. Edwards in the sum of $ 20 per week for 403.8 weeks "or until her prior death or remarriage, then the remainder to Walter J. Edwards, son of deceased." The employer and insurer appealed to the Circuit Court of Jackson County where, upon review, the award made by the Compensation Commission was affirmed and judgment entered in accordance therewith. The employer and insurer bring this appeal from the judgment of the circuit court. Appellants' several assignments of error are directed to the ultimate contention that there is not sufficient, competent, and substantial evidence tending to show that Edwards' death was "by accident arising out of and in the course of his employment." [Sec. 3301, R. S. 1929.]

Edwards resided in Kansas City, Missouri. He was employed by the Ethyl Corporation in September, 1933, as "a field representative" and salesman in its "sales division" and thereafter continued in that employment until his death. Harold R. Berg was sales division manager with headquarters at Kansas City. The division included the states of Colorado, Kansas, Missouri, Nebraska, and Iowa, but not the State of Oklahoma, which was in another division. His duties were varied. The evidence, and mostly that on the part of the employer and insurer, shows that Edwards' service to the Ethyl Corporation as field representative included the following activities: "making jobber investigations," "pump inspections," "picking up samples," "call on automobile agencies," "inspect mixing plants," "visit refineries," interest "automobile distributors" and "oil men" in Ethyl products, "entertain prospects," at all times and generally to "secure information pertaining to distributor's of automobiles or high compression motors" and seek to interest them in Ethyl products, and "explore leads or information" that might contribute to the furtherance of the business of the Ethyl Corporation and the sale and distribution of its products. The evidence tends to show, and is of such nature that the Compensation Commission, as the trier of fact, could well find therefrom, that in performing the general services last mentioned, and indeed all of the duties of his employment, Edwards was allowed "a certain amount of discretion," "within reasonable limits," and that his manner of performing these services was "discretionary according to the conditions at a particular time" and "his judgment." Edwards had no fixed or regular hours of work. When traveling about the division he carried on both the specific duties in which he was at the time engaged and the general duties or services of furthering his employer's business as and when opportunity afforded day or night. Nor did he have a regular, prescribed territory or itinerary; while he worked mostly in western Missouri and Kansas he was also sent, at times, into Nebraska and Iowa. The Ethyl Corporation furnished him an automobile in which to travel. As an incentive to its sales and field representatives to promote and advance its business, form new contacts and secure new business, the Ethyl Corporation offered them an annual bonus. The bonus payment was governed by a rating arrived at upon a consideration of numerous factors such as "ability" and "attitude," by which was meant "attitude with reference to promoting the interests of the Ethyl Corporation." From both admissions and evidence it appears that Edwards was assiduous in the performance of all the duties and services to the Ethyl Corporation mentioned and that in traveling about the territory he was constantly alert and devoted to the furtherance of its business and interests. Nor does it appear that he was given to personal diversions. He seems rather to have constantly busied himself about the employer's business and the promotion and furtherance thereof.

Having sketched the nature of his employment and the services he was expected to render we come to the events immediately preceding the death of Edwards as shown by claimants' evidence, supplemented at some points by evidence introduced on the part of the employer and insurer. Edwards was on a trip in Kansas. He had been directed before returning to the Kansas City offices to go to Coffeyville, Kansas, "to investigate" a Mr. Kirkpatrick "an oil and gasoline jobber" in that city. This is what was known as a "jobber investigation." Berg, the division sales manager, explains: "All oil jobbers who sell gasoline containing our products must be licensed by our company to do so. Before licensing them we have one of our men" make an investigation. When he had completed his work at Coffeyville, Edwards was to go to Joplin, Missouri, and thence return to division headquarters at Kansas City. The automobile collision which resulted in his death occurred about seven p.m., Wednesday, September 5, 1934. On the preceding Thursday the company automobile in which he was traveling had "broken down" near Hillsboro, Kansas and, as extensive repairs were necessary requiring considerable time, Edwards left the company automobile at Hillsboro for repairs and continued his trip by bus. He arrived in Coffeyville, by bus, about three-thirty the afternoon of September 5, went to the Dale Hotel, registered and was assigned to a room. At the time he was carrying only "a zipper brief case." It appears by stipulation that Edwards used this brief case for carrying files, records, "charts, documents, data," and various report forms relating to company business. His "traveling bag" arrived at the hotel, on a later bus, about four-thirty p.m., and was sent to his room. Upon calling at Kirkpatrick's place of business Edwards learned that Kirkpatrick was out of town for the day. Prior to his employment by the Ethyl Corporation Edwards had worked for the Studebaker Corporation "as service manager out of Kansas City." About four o'clock that afternoon Floyd Graham, "Studebaker distributor" at Coffeyville, a "close...