Fischer v. Stephens College of Columbia

• Decision Date: 04 April 1932
• Docket Number: No. 17576.,17576.
• Citation: 47 S.W.2d 1101
• Parties: FISCHER v. STEPHENS COLLEGE OF COLUMBIA et al.
• Court: Missouri Court of Appeals

47 S.W.2d 1101

FISCHER v. STEPHENS COLLEGE OF COLUMBIA et al.

No. 17576.

Kansas City Court of Appeals. Missouri.

April 4, 1932.

Appeal from Circuit Court, Boone County; H. A. Collier, Judge.

Proceeding under the Workmen's Compensation Act by Harold Fischer, claimant, against Stephens College of Columbia, Missouri, employer, and the Ocean Accident & Guarantee Corporation, insurer. From a judgment of the circuit court affirming and approving a final award of the Workmen's Compensation Commission in favor of the claimant, the employer and the insurer appeal.

Affirmed.

Howard F. Major, of Columbia, for appellants.

A. R. Troxell, of Columbia, for respondent.

ARNOLD, J.

This is an appeal from the circuit court of Boone county, affirming and approving a final award of the Missouri Workmen's Compensation Commission, allowing plaintiff compensation for injuries received by him in an automobile collision. The award was for the total sum of $707.18, which included $20 per week for seven and four-sevenths weeks, on account of disfigurement of face (scar) a lump sum of $250, and for disfigurement of face (replacement of teeth) a lump sum of $137; payments to begin April 16, 1931.

The facts of record are that plaintiff filed his claim before the Missouri Workmen's Compensation Commission on June 1, 1931, setting out that he was injured in a collision between an automobile he was driving and another, on a public street in the city of Columbia, Boone county, Mo., while engaged in the prosecution of his employment of calling on prospective purchasers of advertising to be broadcast over Stephens College broadcasting station, known and designated as radio station KFRU. Said radio station was owned by Stephens College in Columbia and located on its campus. It was operated under a license from the Federal Radio Commission to Stephens College in which one Earl W. Lewis is named as operator.

Prior to March 1, 1931, said Lewis was paid a salary as such operator by the college. At that time plaintiff was employed to solicit advertising from commercial houses in Columbia and elsewhere in Missouri, for broadcasting over said radio station in addition to programs on behalf of the college, for which there was no fee, and to assist in putting the broadcast programs on the air. As compensation for such services he received a percentage of the advertising fees secured by him. Plaintiff maintained an office in his living quarters, separate and distinct from the campus of defendant, where he kept his necessary stationery, contracts, printing matter, a telephone, and there he did much of his work in preparing for submission the continuity, or wording of programs to be broadcast.

At some time prior to March 1, 1931, J. M. Wood, president of Stephens College, and said Lewis, entered into an oral arrangement whereby, beginning on March 1, 1931, Lewis was no longer paid a salary as the operator of said broadcasting station, but was permitted to retain all income from the commercial broadcasting, over and above the expense of maintenance and operation of the station. The record shows that all advertisements broadcast over the station and other programs were required to be first submitted to one of the members of the faculty of said college, before they would be permitted to go on the air. There was no change in the method by which plaintiff operated before and after March 1, 1931.

The record further shows that on the morning of April 16, 1931, at about 7 o'clock, plaintiff had gone from his home to the broadcasting station where he assisted, under the direction of said Lewis, in broadcasting a program consisting in part of commercial advertising. Upon completion of this program, or about 7:30 a. m., plaintiff left the broadcasting station, driving his own automobile, with the intention of stopping at a restaurant known as "The Wheel" and going from there to his home (office) and thence to a garage operated by one Clinkscales. Plaintiff testified he went directly from the radio station to The Wheel, where he had a cup of coffee and there discussed with the proprietor the matter of broadcasting a program for the restaurant; that he left the restaurant and was on his way to his office to get certain printed matter to be presented to Clinkscales in an effort to interest him in broadcasting a program of advertising for the garage which was engaged in selling used cars; that while he was thus on his way to his office, the automobile driven by him collided with another automobile, resulting in the injuries for which the compensation now under dispute was awarded.

Plaintiff's testimony was corroborated by Harold Rieback, proprietor of The Wheel, to this extent: That plaintiff was at the restaurant about 7:30 a. m. on April 16, 1931, and discussed with him a broadcasting program for The Wheel. Plaintiff was also corroborated by Robert Clinkscales, one of the proprietors of the garage, in that he had an appointment with plaintiff for an early hour on that day to discuss broadcasting a program for the garage. Plaintiff testified, further, that in soliciting advertising, he found his own customers, made his own hours, and drove his own automobile; that, in assisting in broadcasting at the station, he was required to be there at certain hours.

The record shows that, as a result of plaintiff's injuries, he was rendered unconscious for a short time; that he received injuries about the head and body. The day following the injuries and while he was in the hospital, a representative of the insurer called upon plaintiff and took from him a written statement in which he said he was employed by defendant Stephens College to solicit advertising over radio station KFRU, which was owned and operated by said college. Thereafter, and in due time, plaintiff filed his claim for compensation with the Missouri Workmen's Compensation Commission. To this claim, defendant filed answer on June 8, 1931, in part, as follows:

"1. Claimants: Harold Fischer.

"2. Names and addresses of Employers: Stephens College, Columbia, Missouri.

"3. Names and addresses of Insurers: Ocean Insurance Company, Railway Exchange Bldg., St. Louis, Missouri. * * *

"11. Know was injured and confined to hospital and home and unable to work for approximately 7 weeks — exact nature of injuries do not know."

"14. Loss of teeth and scar have knowledge of — no information of any others.

"15. Facts of claim as to how accident happened and that employee was engaged in occupation for employer true to best of our knowledge."

"18. Amount of compensation entitled to disputed by insurance company."

"20. Employer's Signature, Stephens College Radio.

"21. By Earl W. Lewis, Director."

And on June 11, 1931, the insurer filed answer, embracing the following:

"1. Claimants: Harold Fischer, Otto Court, Columbia, Missouri.

"2. Names and addresses of Employers: Stephens College, Columbia, Missouri.

"3. Names and addresses of Insurers: Ocean Accident & Guarantee Corporation, Limited; Railway Exchange Building, St. Louis, Missouri.

"4. Injured Employee: Harold Fischer.

"5. Date of Accident: April 16, 1931.

"6. Place: Wabash Depot, N. 10th Street, Columbia, Missouri. * * *

"19. Dated June 9, 1931.

"20. Employer's Signature: Stephens College.

"21. By B. L. Easton.

"22. Insurer's Signature: Ocean.

"23. By B. L. Easton."

This answer includes a general denial of "each and every allegation in the employee's claim for compensation."

On July 22, 1931, the claim was heard before Albert I. Graff, referee of the Missouri Workmen's Compensation Commission. Testimony was heard and a transcript of the record was submitted to the proper authorities. The award was made in due course, as above indicated, by Referee Graff submitting findings of fact and rulings of law. Thereafter and on September 9, 1931, defendants made application to the Compensation Commission for a review by the full commission, of said findings of fact, order, and decision. On September 14, 1931, the full commission made its final award, sustaining the recommendation of the said referee as to the award. Notice of appeal to the circuit court of Boone county was duly filed on September 30, 1931. The transcript was filed October 1, 1931, with the circuit clerk of Boone county, and on November 13, 1931, the cause was heard before the judge of the circuit court of said county and judgment entered sustaining in all respects the award of the commission. Defendants have appealed to this court.

There are eight assignments of error presented in the brief, discussed under seven points and authorities, which may be considered under four principal divisions. Defendants' position may be stated as follows:

1. That the accident occurring to the respondent did not arise out of and in the course of his employment.

2. That by virtue of a certain oral agreement between appellant and one Lewis that the broadcasting station of appellant was leased to the said Lewis at the time of respondent's injury, and that the...