Edwards v. Al Fresco Advertising Co.

• Decision Date: 05 January 1937
• Docket Number: 34618
• Citation: 100 S.W.2d 513,340 Mo. 342
• Parties: Mae Edwards et al., Appellants, v. Al Fresco Advertising Company, Employer, and Consolidated Underwriters, Insurer
• Court: Missouri Supreme Court

100 S.W.2d 513

340 Mo. 342

Mae Edwards et al., Appellants, v. Al Fresco Advertising Company, Employer, and Consolidated Underwriters, Insurer

No. 34618

Supreme Court of Missouri

January 5, 1937

Appeal from Circuit Court of City of St. Louis; Hon. John A Witthaus, Judge.

Affirmed.

Edward C. Friedewald for appellants.

(1) The appellants contend that the appellate court has the power to review an award of compensation when there is not sufficient competent evidence in the record to warrant the making of the award. Sec. 3342, R. S. 1929; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909. (2) The legal sufficiency of the evidence to support the finding and denial of an award is reviewable by the courts. Snorgrass v. Cudahy Packing Co., 82 S.W.2d 226. (3) The claimants having sustained the burden of proof required of them to establish that the deceased was engaged in the performance of his duties at the time of the accident were entitled to an award. Wahlig v Krenning-Schlapp Grocer Co., 29 S.W.2d 128; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Newman v Rice-Stix Dry Goods Co., 73 S.W. 264; McNichols' Case, 215 Mass. 497. (4) The award of the commission cannot be based upon mere speculation or surmise or by piling inference upon inference. Hamilton v. Railroad Co., 250 Mo. 714. (5) An affirmative defense must be proven. Barlow v. Shawnee Inv. Co., 48 S.W.2d 35. (6) The provisions of the Workmen's Compensation Act are to be liberally construed. Duggan v. Toombs-Fay Sash & Door Co., 66 S.W.2d 976.

Fordyce, White, Mayne & Williams and G. Carroll Stribling for respondents.

(1) The commission's finding that the accident did not arise out of and during the course of Edwards' employment was a finding of fact, and, if supported by any substantial and competent evidence, is conclusive and binding on appeal. Shroyer v. Mo. Live Stock Comm. Co., 61 S.W.2d 713, 332 Mo. 1219; Crutcher v. Curtiss-Robertson Air Plane Mfg. Co., 52 S.W.2d 1019, 331 Mo. 169; Metting v. Lehr Const. Co., 32 S.W.2d 121, 225 Mo.App. 1152; Bise v. Tarlton, 35 S.W.2d 993. (2) An abundance of substantial and competent evidence established that the deceased was merely returning to his home after an afternoon of amusing himself at the time the accident occurred. (3) Even if it be assumed that Edwards was in fact going to look at the signs at the time of the accident, the accident did not happen in the course of his employment because Edwards had totally abandoned his employment, and had not returned either to the place of departure or to any other point where his duties required his presence. Duggan v. Toombs Fay Sash & Door Co., 66 S.W.2d 973; Anderson v. Nagel, 259 S.W. 859; Kauffman v. Baden Ice Cream Mfgs., 7 S.W.2d 298; Vallery v. Hesse Bldg. Materials Co., 211 S.W. 95.

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

OPINION

FERGUSON

This is an appeal from the judgment of the Circuit Court of St. Louis County affirming an award of the Workmen's Compensation Commission denying a claim under the Workmen's Compensation Act for death benefit made by appellant Mae Edwards, the widow of Roy Edwards, deceased, who, at the time he was killed in an automobile collision, was employed by respondent Al Fresco Advertising Company.

Deceased left surviving, his wife, claimant herein, and a minor child, Roy, eight years of age. It was stipulated that deceased's "average weekly earnings during the year immediately preceding" his death was $ 52. Computed according to the provisions of Section 3319, Revised Statutes 1929, the total death benefit sought and involved exceeds $ 7500 and therefore our jurisdiction of the appeal.

The Al Fresco Advertising Company maintained a large number of advertising signs at various points upon roads and streets in St. Louis County, most of which were electrically illuminated. Edwards' duties as an employee of the advertising company were to keep the signs and the mechanism thereof in repair, wind the automatic clocks which regulated the lighting of the lights of the illuminated signs, and making a nightly patrol or inspection of all the signs to see that the lights were "working properly." The clocks were set or timed to turn on the lights daily "at dusk" which on the date of the accident resulting in Edwards' death, April 19, 1934, was between seven-thirty and seven-forty-five P. M. Edwards was supposed to commence the nightly patrol at about the time the lights were turned on. It required about two and one-half hours to make the inspection. Edwards owned an automobile which he used in carrying on this work. The evidence discloses the following facts and and circumstances. Edwards and his family resided on Arden Avenue, in Pine Lawn, St Louis County. About one o'clock P. M. of the date mentioned (Thursday) Edwards went in his automobile with two friends, Clark Walton and Joe Sisk, to the "northernmost end of St. Louis County on the Missouri River" to buy some fish "for Friday." At the point of destination they purchased the fish and then decided to go to "Joe Hobath's," which it seems was a recreation resort in the north part of St. Louis County. They arrived at Hobath's about two-thirty P. M. and remained there until "about eight o'clock." The evidence as to time however indicates that it may have been after eight o'clock when they left Hobath's. Walton stated that during the five and one-half hours or more spent at Hobath's they "fooled around," "had a couple of small beers and a couple of sandwiches" and "bowled." Upon arrival at Hobath's the fish, purchased at the Missouri River, were taken from the automobile and "put on ice." Leaving Hobath's about eight-thirty or later, with Edwards driving the automobile, they went to the home of Sisk on the Bellefontaine Road a distance of about four miles. A stop of "five or ten minutes" was made at the Sisk home and Edwards and Walton then continued their return journey. No very plausible explanation is made as to why at this point Walton took over the driving of the automobile, however, he drove the automobile from the Sisk home to the point of the accident. The northernmost of the signs, which it was Edwards' duty to nightly inspect, was at the corner of Taylor Avenue and West Florissant Avenue or 4500 West Florissant, a distance by the most direct route of 8.4 miles from the Sisk home. Walton testified that he and Edwards left the Sisk home intending to make an inspection trip or patrol of the signs going first to the nearest or northernmost sign, located as noted at the corner of Taylor and West Florissant Avenues, and that he drove the automobile, though they were 8.4 miles from the nearest sign at the time, in order that Edwards could "look at the signs." This explanation challenges attention when it is recalled that it was customary for Edwards to nightly drive this automobile...