Foster v. Aines Farm Dairy Co., 43542

• Decision Date: 14 December 1953
• Docket Number: No. 43542,No. 1,43542,1
• Citation: 263 S.W.2d 421
• Parties: FOSTER v. AINES FARM DAIRY CO. et al
• Court: Missouri Supreme Court

Page 421

263 S.W.2d 421

FOSTER v. AINES FARM DAIRY CO. et al.

No. 43542.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 11, 1954.

Marcy K. Brown, Jr., Ben E. Pener, Kansas City, for appellants.

R. Robert Cohn, Kansas City, for respondents.

VAN OSDOL, Commissioner.

This is a workmen's compensation case.

Iley Johnson, employee of Aines Farm Dairy Company, was fatally wounded by a knife in the hand of one Frank Boyce in an encounter at a store on Guinotte Street in Kansas City, December 29, 1949. The employee was survived by his wife and four minor children. The employee's widow, Frances Johnson, qualified as guardian of the children in the Probate Court of Johnson County, Kansas, and filed claim for compensation as employee's widow and as guardian. And Dortha Foster, sister of employee, qualified in the Probate Court of Jackson County as curatrix of the estates of the minor children and filed claim for compensation on the theory that the employee's widow was entitled to compensation. See Section 287.240 RSMo 1949, V.A.M.S.; Beecham v. Greenlease (Cadillac) Motor Co., 225 Mo.App. 619, 38 S.W.2d 535.

Both claimants introduced evidence in support of their claims before a referee of the Industrial Commission (Workmen's Compensation Division). The referee, and the Commission upon review, found from all of the evidence that the death of the employee was not the result of an accident arising out of and in the course of his employment. The Commission entered a final award denying compensation; and upon appeal the Circuit Court of Jackson County in turn entered judgment denying compensation. Claimant Dortha Foster, curatrix, has appealed. Claimant Frances Johnson, widow and guardian, did not appeal.

This court has appellate jurisdiction of the case on the ground of the 'amount in dispute.' The compensation in death benefits, if awarded in the instant case, would be in excess of $7,500. Const. Art. 5, Sec. 3, V.A.M.S.; Section 287.240, supra; Lardge v. Concrete Products Mfg. Co., Mo.Sup., 251 S.W.2d 49.

In reviewing this workmen's compensation case we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Const. Art. 5, Sec. 22, V.A.M.S. This does not mean that we may substitute our own judgment on the evidence for that of the Commission. But we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.

It is thought that no all-embracing definition of the phrase 'arising out of and in the course of his employment' has yet been framed. Every case involving the phrase 'should be decided upon its own particular facts and circumstances and not by reference to some formula.' Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, 605; Finley v. St. Louis Smelting & Refining Co., Mo.Sup., 233 S.W.2d 725; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530; Lardge v. Concrete Products Mfg. Co., supra; Section 287.120 RSMo 1949, V.A.M.S. But it has been said that an injury arises 'out of' the employment when there is causal connection between the conditions under which the work is required to be performed and the resulting injury (and that an injury to an employee arises 'in the course of' his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto). Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128. See also Fowler v. Baalmann, 361 Mo. 204, 234 S.W.2d 11; Morgan v. Duncan, 361 Mo. 683, 236 S.W.2d 281; Goetz v. J. D. Carson Co., supra; Tabor v. Midland Flour Milling Co., 237 Mo.App. 392, 168 S.W.2d 458.

Was Commission's determination that the fatal injury was not the result of an 'accident arising out of and in the course of' the employment supported by substantial and competent evidence upon the whole record?

As stated, Iley Johnson, employee, was employed by respondent-employer Aines Farm Dairy Company. He was the driver of employer's truck in making wholesale milk deliveries to stores including the store on Guinotte where employee was fatally wounded and which store was until the day, December 28th, preceding his death, December 29th, owned by employee and his brother-in-law Raymond Foster, husband of claimant-appellant Dortha. The store was on employee's regular milk delivery route. The store had been purchased by employee and Foster September 15, 1949; and Frank Boyce and employee's wife, Frances, were put in charge, and were conducting the business until the day employee was killed.

There was evidence tending to show that in 1949 employee, Iley Johnson, had lived with his wife, Frances, and their four minor children on a farm in Kansas. Boyce had lived with the Johnsons in their home for one or two years prior to the purchase of the store on Guinotte in September 1949. As we have said, when the store was purchased by Johnson and Foster, Boyce and Johnson's wife were put in charge. In about thirty days domestic troubles developed, and a few days later the Johnsons separated. Employee's wife left the Kansas home and lived with Boyce at hotels and apartments in Kansas City. However, employee's wife and Boyce continued to run the store. Employee's widow, claimant Frances, testified there was no friction because of this anomalous situation--'there was an understanding between all of us.' Employee instituted an action for divorce in the District Court of Johnson County, Kansas, sometime in November. And the wife filed answer, apparently on December 28, 1949. After employee had instituted the divorce action there had been talk of a property settlement and, it seems, it was tentatively agreed that there would be no contest in the divorce case and that employee was to have the custody of the children. However, as stated, the wife filed answer on or about December 28th, the day preceding employee's death. In her answer, she prayed for a divorce, and asked for an equitable division of the property and the custody and control of the minor children.

Employer, Aines Farm Dairy Company, knew of employee's interest in the store. Employer had supplied the store with an 'Aines' milk sign, and had also painted and supplied a 'Johnson's Market' sign. However, it seems these courtesies were those employer gave to proprietors of all stores, patrons of employer. On 'her own time' another employee of Aines 'kept the books' for Johnson's Market. It was employee's duty, in 'making his route,' to deliver Aines milk products to the customer stores, 'pick up' empty bottles, containers and, sometimes, the unused, spoiled products which had been delivered on preceding days, and to make collections for products delivered that day.

December 28th employee transferred his interest in the store to Foster, and it was planned that Foster was to come to the store at 9:00 o'clock the next morning and meet employee when he arrived to deliver milk. It had been arranged that employee was to advise Boyce and employee's wife of the transfer of employee's interest in the store and that Boyce 'would have to get out if Foster said so.'

Raymond Foster, witness for claimant Dortha Foster, testified, 'I asked Johnson to tell them (Boyce and employee Johnson's wife) that he had sold his part to me. * * * He (employee) was supposed to go down there and tell them I had bought his part of the store and that they would have to leave.' When Foster had arrived at the store, Boyce was standing by the cash register. Employee told Boyce of the transfer of employee's interest, and there was some further argument about the keys to an automobile which had been purchased by Boyce but the title to which was in employee. [Employee had said 'he did not want Frank Boyce driving the car in his (employee's) name.'] 'Frank (Boyce) said he would strip him of everything he had.' Frances 'said the same thing.' Employee 'asked me to pay for the milk. * * * I started back to pay him * * * I opened the drawer and Frank Boyce was walking out with his hand in his coat pretending to have a gun, walking toward Johnson.' Employee hit Boyce and Boyce went down, knocked a cooky rack over, and Johnson 'hit him four or five times.' Foster stopped the fight. Johnson was 'straightening up his clothes * * * and Boyce went back towards the meat counter.' Johnson asked Foster 'to pay him (for the milk) so he could get out.' Boyce got a butcher knife. 'I (Foster) was walking back to pay Johnson for his milk when I met Frank with his knife.' Johnson 'was standing by the vegetable rack, waiting for me to pay him. He asked twice for me to pay for the milk.' As Boyce approached, Johnson took up a light board from over the cooky rack and struck at Boyce. 'Frank ducked * * * and the board hit him on the back. Then Boyce came up with the knife' and struck Johnson in the heart.

On cross-examination, counsel for respondents, employer and insurer, interrogated Foster concerning his signed written statement made, December 29th, to the police. The statement was received in evidence over the objection of both claimants. The statement was in part as follows,

'Yesterday, December 28th, 1949, I got a telephone call from Iley, asking me to meet him at the dairy. I went to the dairy * * * and met him about 2 o'clock in the afternoon. At that time he told me that he wanted to sign the grocery store over to me, that he was afraid he was going to have a little trouble and that if anything happened he wanted me to have the grocery store, or get my money out of it. We then went out of the dairy and contacted an...