Everard v. Woman's Home Companion Reading Club

• Decision Date: 06 December 1938
• Docket Number: No. 24995.,24995.
• Citation: 122 S.W.2d 51
• Parties: A.E. EVERARD, EMPLOYEE, RESPONDENT, v. WOMAN'S HOME COMPANION READING CLUB (CROWELL PUBLISHING CO.) EMPLOYER AND HARTFORD ACCIDENT AND INDEMNITY CO., INSURER, APPELLANTS.
• Court: Missouri Court of Appeals

122 S.W.2d 51

A.E. EVERARD, EMPLOYEE, RESPONDENT, v. WOMAN'S HOME COMPANION READING CLUB (CROWELL PUBLISHING CO.) EMPLOYER AND HARTFORD ACCIDENT AND INDEMNITY CO., INSURER, APPELLANTS.

No. 24995.

St. Louis Court of Appeals. Missouri.

Opinion filed December 6, 1938.

Appeal from the Circuit Court of City of St. Louis. — Hon. Ernest F. Oakley, Judge.

AFFIRMED.

Albert I. Graff, Harold R. Koenig and Louis L. Hicks for respondent.

(1) Ransdell v. International Shoe Co., 329 Mo. 47, 44 S.W. (2d) 1. (2) Sec. 3301, R.S. Mo., 1929; McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W. (2d) 136. (3) Hugh Murphy Const. Co. v. Serck, 104 Neb. 398, 117 N.W. 747. (4) Howe v. Stark Bros. Nurseries (Mo. App.), 22 S.W. (2d) 839; Leilach v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W. (2d) 601. Additional Authorities under point three of Points and Authorities. Benoit Coal Mining Co. v. Moore (Ala.), 109 So. 878; Popineau v. Ind. Acc. Comm. of Cal., 187 P. 108.

A.B. Lansing and Moser, Marsalek & Dearing for Employer and Insurer.

(1) Stone v. Blackner & Post Pipe Co., 224 Mo. App. 319, 27 S.W. (2d) 459; Slalina v. Ind. Com. of Ohio, 158 N.E. 829; Sweeny v. Sweeny Tire Stores Co., 227 Mo. App. 93, 49 S.W. (2d) 205; 71 C.J., p. 709; Metting v. Lehr Construction Co., 225 Mo. App. 1152, 32 S.W. (2d) 121; 1 Schneider on Compensation Law (2 Ed.), p. 735. (2) McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W. (2d) 136; Sec. 3309, R.S. Mo. 1929; State ex rel. v. Comp. Comm., 320 Mo. 893, 8 S.W. (2d) 897; Shout v. Gunite Co., 226 Mo. App. 388, 41 S.W. (2d) 629; Barlow v. Shawnee Inv. Co., 229 Mo. App. 51, 48 S.W. (2d) 35; McKenzie v. Missouri Stables, 225 Mo. App. 64, 34 S.W. (2d) 136; Meyer Milling Co. v. Baker, 328 Mo. 1246, 43 S.W. (2d) 794, 797; Sec. 3309, R.S. Mo. 1929; Kansas City to use Mo. Pac. Ry. Co. v. Southern Surety Co., 219 S.W. 727, 203 Mo. App. 148.

McCULLEN, J.

This is an appeal by the employer and insurer from a judgment of the Circuit Court of the City of St. Louis affirming a final award of the Missouri Workmen's Compensation Commission in favor of the respondent employee, A.E. Everard.

The record shows that Everard filed his claim in due time for compensation; that the employer and insurer filed an answer denying that the employee suffered an accident arising out of and in the course of the employment, and denying the amount of wages claimed by the employee. A hearing on the claim was held before a referee of the Workmen's Compensation Commission, who, on July 20, 1937, made and filed with the Commission an award on hearing awarding the employee compensation at the rate of $20.00 per week for eight and one-seventh weeks, beginning as of January 1, 1937, the referee stating in his award: "The aforesaid compensation shall be subject to $100 paid by third party."

On July 27, 1937, the employer and insurer filed an application for a review of said award by the full Commission. On November 2, 1937, the full Commission made and filed its final award awarding the employee for temporary total disability the sum of $20 per week for eight and one-seventh weeks, beginning as of January 1, 1937, and for medical aid the sum of $22, the award being subject to a credit of $100, the amount received by the employee from the third party. As an additional finding of fact and ruling of law, the Commission stated:

"On review award dated July 20, 1937, is hereby modified with reference to the failure to make any allowance for medical aid. Employee expended $22.00 for medical treatment, and as the employer and insurer did not furnish him any treatment they are liable for same.

"As so modified, award dated July 20, 1937, is hereby affirmed."

According to the final award, the balance payable employee or dependents is $84.86.

Employer and insurer appealed from said final award to the Circuit Court of the City of St. Louis, where the award was affirmed. From the judgment affirming said award, employer and insurer have duly appealed to this court.

The employer and insurer contend that there was not sufficient evidence in the record to support a finding that the injury arose out of and in the course of the employment; and that the Compensation Commission erred in finding that the injury was compensable under the Compensation Act.

It appears from the record that Everard was employed by the Woman's Home Companion Reading Club as a solicitor to procure subscriptions for magazines. He was paid for his services entirely on a commission basis. During the year 1936 his earnings averaged $30 per week. On December 31, 1936, Everard and six others members of the selling crew in which he worked were directed to solicit subscribers in the southwest part of the City of St. Louis. The usual time for starting their work was around nine o'clock in the morning, but they were not required to start work at any particular time. They usually worked until four or five o'clock in the afternoon. On the date mentioned, Evarard started to work at nine o'clock in the morning, being at that time under the orders of Brookins, who was his immediate superior. Brookins directed Everard as to what streets to cover in doing his soliciting. During the morning in question, Everard canvassed from house to house selling magazines in the Morganford and Gravois district, continuing to canvass until sometime around noon. He sold one subscription during that morning. About noontime, Everard met Louis J. Brookins, the manager of the selling crew, and two other members thereof at Remley's Market near Morganford and Gravois Avenues, in the territory where he was soliciting business. It appears that Remley's Market is a large retail store near Kings-highway and Gravois Avenue in St. Louis, in connection with which there is a lunchroom. The record is silent as to whether or not they met by prearrangement.

Everard testified that he didn't have any fixed lunch hour; that he and Brookins and the other two members of the selling crew sat down to lunch together and discussed their business; that, during the time he was eating, he printed the name and address of the subscriber and the amount of the subscription on the back of an order that he had written that morning; that, while they were eating, Mr. Brookins told him what territory to work after lunch; that, after he had finished eating, he paid his check and started to leave the lunchroom, and, while walking toward the door, he stepped upon a large splinter which forced itself through the sole of his shoe and into his right foot.

Everard further testified that the manager of Remley's store sent him to Dr. J.C. Cornell, who treated him for about six or seven weeks; that, about six weeks after the accident, he made an attempt to resume his work of soliciting subscriptions, but was unable to do so; that, on February 26, 1938, he finally returned to work, and resumed steady employment, that his foot had healed but there remained a scar. He further testified that he was paid $100 by the Remley Market; and that he executed a release therefor; that the $100 included $22 for the doctor's bill.

Louis J. Brookins testified that, on December 31, 1936, he was the crew manager for the employer, having been so employed for about two years and a half, and was still employed in that capacity at the time of the hearing. Testifying as to the manner and method of carrying on the work, the witness said that they usually started work in the morning around nine o'clock, and worked up to four or five o'clock in the evening; that they had no set time to start or quit, and didn't have any definite time for the noon period; that some of the boys felt like working and did not even take a noon period but continued on working; that they usually "knock off as a rule around twelve or twelve thirty. It doesn't matter what time, and we might take an hour and might take twenty minutes."

The witness further testified that, on the day of Everard's injury, "We were all in eating lunch on our lunch hour, and as we finished with our meal I told each man where to work in the afternoon." The witness then stated that Everard walked ahead of him as they left the lunch counter; that he noticed Everard stop for a minute and pick up his foot, after he started to walk, but was limping; that Everard went across the street, pulled off his shoe, and as he did blood squirted out; that he asked Everard what happened, and Everard said he had run a splinter in his foot; that Everard pulled the splinter out, and it was about five inches long. The witness testified that he then got in touch with the manager of the store and explained the situation, and the manager sent them to a doctor nearby on Gravois Avenue. The witness stated that he could not say that he saw Everard "backing an order" during the noon hour of that particular day, although he said, "We do it lots of times." It appears that "backing an order" means the act of the solicitor in printing the name of a subscriber and the date and amount of the subscription on the back of the order. In this connection, the witness testified:

"Q. State whether or not it is customary to back orders during the noon hour? A. Some do and some don't. I don't recall whether he backed an order on this particular occasion; I couldn't say. I couldn't say he didn't."

The witness was asked on cross-examination whether they have to back orders at the noon hour, and answered: "In selling, in our business we don't have to do anything we don't want to." On redirect examination, the witness testified that backing an order is incidental to the work. The witness further testified that, when they started out in the morning, he gave the members of the selling crew a definite section to work in during the morning; and that, if they had enough, they continued during the afternoon to work in that section, but, if they didn't have enough, he would give them another section in which to do their soliciting.

Appellants contend that...