Friede v. George Lytle, Inc.

• Decision Date: 04 April 1940
• Citation: 127 S.W.2d 40,235 Mo.App. 64
• Parties: MARGARET FRIEDE, RESPONDENT, v. GEORGE LYTLE, INCORPORATED, ALLEGED EMPLOYER, AND CONSOLIDATED UNDERWRITERS, INSURER, APPELLANTS
• Court: Missouri Court of Appeals

127 S.W.2d 40

235 Mo.App. 64

MARGARET FRIEDE, RESPONDENT, v. GEORGE LYTLE, INCORPORATED, ALLEGED EMPLOYER, AND CONSOLIDATED UNDERWRITERS, INSURER, APPELLANTS

Court of Appeals of Missouri, St. Louis

April 4, 1940

Appeal from the Circuit Court of City of St. Louis.--Hon. Thomas J Rowe, Judge.

AFFIRMED.

Action affirmed.

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

(1) The commission's finding that claimant was not an employee of George Lytle, Incorporated, at the time of the accident was a finding of fact. Gibson v. St. Joseph Lead Co., 102 S.W.2d 152; Rutherford v. Tobin Quarries Co., 336 Mo. 1171, 82 S.W.2d 918; Jones v. Century Coal Co. (Mo App.), 46 S.W.2d 196. (2) In reviewing the commission's finding of fact that claimant was not an employee, this court must look only to the evidence most favorable to the award. Gibson v. St. Joseph Lead Co., supra; Rutherford v. Tobin Quarries Co., supra; Shroyer v. Mo Livestock Com. Co., 332 Mo. 1219, 61 S.W.2d 713, l. c. 714; Edwards v. Al Fresco Adv. Co., 340 Mo. 342, 100 S.W.2d 513. (3) The commission's finding of fact that the claimant was not an employee was based on substantial and competent evidence and therefore conclusive and binding on appeal. Gibson v. St. Joseph Lead Co., supra; Rutherford v. Tobin Quarries Co., supra; Edwards v. Al Fresco Adv. Co., supra; Leilich v. Chevrolet Motor Co. , 328 Mo. 112, 40 S.W.2d 601; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Jones v. Century Coal Co., supra.

W. Paul Mobley and Beasley & Zulley for respondent.

(1) There is not sufficient legal evidence to justify and sustain the finding and award of the Workmen's Compensation Commission. It was therefore the duty of the circuit court to reverse the award and remand the cause. Yancey v. Egyptian Tie & Timber Co., 95 S.W.2d 1230; Adams v. Lilbourn Grain Co. et al., 48 S.W.2d 147; Stepaneck v. Mark Twain Hotel, 104 S.W. 761, l. c. 765; Hodges v. Chevrolet Motor Co., 116 S.W.2d 170; Carlton v. Henwood, 115 S.W.2d 172; Kenser v. Ely & Walker Dry Goods Co., 48 S.W.2d 167. (2) Whether there is sufficient substantial evidence to support the finding of the commission is a question of law to be determined by the circuit court or the appellate court, on a careful consideration of the facts of each particular case. And under the facts of the present case where all of the legal evidence bearing on the question in issue is undisputed, the commission's finding that respondent was not in the employ of the appellant, Lytle, is a question of law, and is not binding on the appellate court. Carlton v. Henwood, 115 S.W.2d 172. (3) There was not legally sufficient evidence to support the finding and award of the Workmen's Compensation Commission, that respondent was not in the employ of the appellant. Thurman v. Fleming-Young Coal Co., 49 S.W.2d 288; Biskup v. Hoffman, 220 Mo.App. 542, 287 S.W. 865; Adams v. Lilbourn Grain Co. et al., 48 S.W.2d 147; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Cases cited under Point 1. (4) The provisions of the Workmen's Compensation Law should be liberally construed in favor of the employee. Where there is any doubt respecting the right of compensation, such doubt should be resolved in favor of the employee. Hodges v. Chevrolet Motor Co., 116 S.W.2d 170; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Everard v. Woman's Home Companion Reading Club, 122 S.W.2d 51, l. c. 56.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This case was begun by Margaret Friede, claimant, before the Workmen's Compensation Commission. George Lytle, Inc., the alleged employer and the Consolidated Underwriters, its insurer, resisted her claim for compensation.

It is sufficient to note that there is no question about George Lytle, Inc., being subject to the Workmen's Compensation Law and that the injury which claimant sustained was a genuine injury and was compensable if she was an employee of George Lytle, Inc., at the time of sustaining the injury complained of. The referee, before whom the claim was heard, found that she was in the employee of George Lytle, Inc., at the time of the reception of the injury, and made an award in her favor in the sum of $ 230.80. On a review of the referee's finding by the members of the Workmen's Compensation Commission, the referee's award was reversed; that body finding that the claimant was not, at the time of the reception of her injury, in the employ of George Lytle, Inc. From this award an appeal was taken by the claimant to the circuit court, and, on a hearing that court reversed the action of the Workmen's Compensation Commission and directed that the case be remanded to the commission. From this action of the circuit court the alleged employer and the insurer have perfected their appeal to this court.

The facts disclosed by the testimony are substantially as follows: The claimant, Mrs. Friede, who is a resident of East St. Louis, Illinois, and known to be a capable demonstrator of food products, received a postal card, dated October 1, 1935, from Mrs. Lottie Tidrow, reading as follows:

"At this time, Geo. Lytle, Inc., 900 Hodiamont, St. Louis, Mo., is placing a number of Demonstrations on food (nationally known).

"If you would care for an interview kindly phone CA 8730 for information not later than Wednesday afternoon Oct. 2nd.

"Respectfully,

"Lottie Tidrow, Supervisor."

Shortly thereafter, Mrs. Tidrow and Mrs. Friede had a conference in St. Louis and arranged for Mrs. Friede to make demonstrations of these food products for George Lytle, Inc. A list of demonstrators from which Mrs. Tidrow should select had been given to her by George Lytle, Inc., and Mrs. Friede, the claimant, was selected from this list by Mrs. Tidrow. Mrs. Friede then demonstrated at different places in Illinois for George Lytle, Inc., prior to the date of the accident in question.

On November 16, 1935, while making a demonstration at Schermer Brothers' store in Granite City, Illinois, Mrs. Friede was injured. She was then demonstrating Nucoa, an oleomargine product, and the Nucoa and equipment, or set-up, used in the demonstration to be made by Mrs. Friede, belonged to George Lytle, Inc., and had been taken by a salesman of George Lytle, Inc., from its business place in St. Louis, Missouri, to the place of demonstration, in this instance, to Schermer Brothers' store in Granite City, Illinois, where the demonstration, which had been arranged by the salesman, was to take place. This was the same procedure as had been observed in former demonstrations made by claimant.

Reports of former demonstrations made by claimant between October 4 and November 16, 1935, were made by her to Mrs. Tidrow, and she, in turn, made a report to George Lytle, Inc. Mrs. Friede was paid at the rate of $ 3 a day and expenses for each demonstration, by George Lytle, Inc., with checks signed by George Lytle, as president, and A. B. Hughes, as secretary-treasurer, of George Lytle, Inc.

George Lytle, Inc., was the sole distributor of Nucoa and the other food products for which Mrs. Friede had acted as demonstrator. The demonstrations were all ordered and arranged for by George Lytle, Inc., and were made under the direction of officers, salesmen and agents of said corporation for the purpose of increasing the sales and profits of said corporation. George Lytle, Inc., selected the time and place of the demonstrations, including the one where Mrs. Friede was injured.

During the time of the business contact between the claimant and Mrs. Lottie Tidrow, the latter had her office in the business house of George Lytle, Inc., in St. Louis, Missouri, and used the stationery and telephone service of that concern during the time these demonstrations were being carried on, and, as in the postal card above quoted, held herself out as acting for and as being in the service of George Lytle, Inc.

Mrs. Lottie Tidrow was called as a witness on behalf of the claimant in the hearing before the referee, and testified that she had become acquainted with Mrs. Friede sometime prior to the 2nd day of October, 1935; that she had previously met her at a food show in East St. Louis.

Mrs. Tidrow was very evasive in her answers to questions propounded to her by claimant's counsel, and, in frequent instances made no answers at all. She testified emphatically that she was not at any time in the employ of George Lytle, Inc., but was in the employ of the firms in foreign cities in the east and in Chicago, who were engaged in manufacturing the foods which were the products used by George Lytle, Inc., in the various demonstrations sponsored and carried on by it.

Mrs. Tidrow's testimony could only mean that she was changing employers every time a food product made by a different manufacturer was used by George Lytle, Inc., in putting on its many demonstrations. In the so-called cracker demonstrations she herself was, therefore, in the employ of the Educator Biscuit Company of Chicago, the Best Food Company of New York and Chicago, and the Educator Wafer Company, whose officers are in the east and in Chicago.

To illustrate, the following appears in Mrs. Tidrow's direct examination, viz.:

"Q. Didn't you tell her (meaning Mrs. Friede) the 2nd day of October, 1935, that George Lytle, was putting on a demonstration and you wanted her to go to work? A. No, sir; I did not. . . .

"BY THE REFEREE: Q. What company were you working for? A. In this particular instance, I was supervisor for the Best Foods Inc.; there was a special campaign on at this time for George Lytle, Inc.; he is a distributor. I was hiring and firing demonstrators and attending to everything in every way for our company; representing them, in other words,...