Greer v. Department of Liquor Control

• Decision Date: 26 November 1979
• Docket Number: No. 11065,11065
• Citation: 592 S.W.2d 188
• Parties: Thomas Jefferson GREER, Deceased, Employee, Rose D. Greer, Claimant-Appellant, v. DEPARTMENT OF LIQUOR CONTROL, State of Missouri, Employer-Respondent, and Travelers Insurance Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 188

592 S.W.2d 188

Thomas Jefferson GREER, Deceased, Employee Rose D. Greer, Claimant-Appellant, v. DEPARTMENT OF LIQUOR CONTROL, State of Missouri, Employer-Respondent and Travelers Insurance Company, Insurer-Respondent.

No. 11065.

Missouri Court of Appeals, Southern District, Division Three.

Nov. 26, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 19, 1979.

Application to Transfer Denied Feb. 11, 1980.

John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, for claimant-appellant.

James B. Kennedy, Evans & Dixon, St. Louis, for respondents.

GREENE, Judge.

Thomas Jefferson Greer (Greer) was an employee of the Department of Liquor Control, State of Missouri (Employer). On February 11, 1971, Greer, accompanied by Sgt. Kenneth Lancaster of the Missouri Highway Patrol, was crossing a muddy field when he collapsed and died of an apparent heart attack. His widow, Rose D. Greer, (Widow) filed a claim of workmen's compensation benefits against the Employer and its insurance carrier, Travelers Insurance Company (Travelers). The Employer denied the claim.

After a hearing, the workmen's compensation referee issued an award of benefits to the Widow, ruling that Greer's death was an accident and that it arose out of and in the course of his employment. The Employer and Travelers appealed. The Labor and Industrial Relations Commission (Commission) reversed the ruling of the referee, in a split decision, and issued a final award denying benefits, on the theory that Greer's death, though accidental, did not arise out of and in the course of his employment. The Widow appealed to the circuit court of Stoddard County. After hearing, the trial court entered judgment affirming the decision of the Commission, stating that the decision of the Commission was supported by sufficient competent evidence to warrant its finding that Greer did not die as the result of accidental injury arising out of and in the course of his employment and that such evidence supported the award denying compensation to the Widow. The Widow appeals. Insurer-respondent has filed a motion to dismiss the appeal for claimed violations of Rule 84, V.A.M.R. The motion is overruled.

The sole point relied on, though perhaps inarticulately stated, is that the trial court erred in affirming the decision of the Commission for the reason that the Commission's decision was not supported by sufficient evidence to warrant the award in question and that all of the substantial competent evidence was to the effect that, at the time of his death, Greer was engaged in an activity arising out of and within the scope of his employment.

The scope of review by an appellate court in workmen's compensation cases is limited. Section 287.490.1, RSMo 1969, V. A.M.S., ¹ sets out the grounds for appeal and the scope of review. By reason of that statute, the only possible grounds for reversal of this case are 1) that the facts found by the Commission do not support the award, or 2) that there was not sufficient competent evidence in the record to warrant the making of the award. We view the record in a light most favorable to the findings and award of the Commission, Johnson v. Simpson Oil Co., 394 S.W.2d 91, 96 (Mo.App.1965), and in so doing, recognize that the Commission is the sole judge of the credibility of the witnesses and of the weight of the evidence. Welborn v. Southern Equipment Company, 395 S.W.2d 119, 126 (Mo. banc 1965). The decision of the Commission must be affirmed, if it is supported by competent and substantial evidence, and will be set aside only if such decision is clearly contrary to the overwhelming weight of the evidence. Williams v. S. N. Long Warehouse Company, 426 S.W.2d 725, 733 (Mo.App.1968). We do not know of any Missouri case containing an all-embracing definition of the phrase "arising out of and in the course of his employment." Our courts have consistently held that each case involving the application of the facts to such phrase should be decided upon its own peculiar facts and circumstances. Lunn v. Columbian Steel Tank Co., 364 Mo. 1241, 1246, 275 S.W.2d 298, 301 (1955).

The facts and circumstances of this case are as follows. Greer was an agent of the Missouri Department of Liquor Control and had been employed as such for a number of years prior to his death. His primary duty was the investigation of liquor law violations. His job description (claimant's exhibit B) included a duty to maintain good working relationships with city, county, and state officials. His job manual (claimant's exhibit D) contained the policy statement, "(E)ach agent should cooperate with federal, state, and local law enforcement agencies to become as knowledgeable as possible concerning crime in his particular area . . . ." This policy was approved and emphasized by Greer's supervisors through letters and memoranda from the supervisor to district supervisors and agents in the field. The agents worked with members of the Missouri State Highway Patrol in the investigation of liquor law violations. On many occasions, the agent went with a trooper, in the trooper's automobile, to conduct the investigations.

George Liebig, Greer's district supervisor, testified at the hearing before the referee. Liebig stated that while working with highway patrol troopers on liquor cases, it was sometimes necessary for the trooper to divert to other duties, in answer to emergency calls, such as reports of automobile accidents and of crimes. This had happened to Liebig several times when he was an agent. When it did happen, he always assisted the trooper. Liebig stated that while doing so, he was on duty, due to the policy of the Department of Liquor Control to cooperate with other law enforcement personnel.

Corporal Arthur G. Collier was a member of the Missouri State Highway Patrol. He had known Greer since 1965 and had worked with him on a number of occasions in the investigation of liquor law violations. Greer usually went with Collier, in Collier's patrol car, to conduct the investigations. Occasionally, Collier would have to answer other calls while Greer was in the car with him. Greer went with Collier on such calls and had assisted him in arresting suspects on several prior occasions.

Collier met Greer at 9 a. m. on February 11, 1971, at the magistrate courtroom in Bloomfield, Missouri. Liquor law violation cases were pending in the court on that day. Collier had been working on the cases with Greer for a considerable period of time. Both men stayed in court until noon. They had lunch and then started to contact witnesses in the cases. They were in Collier's patrol car. They had not finished the job by 4 p. m., at which time Collier went off duty. Collier suggested that Greer continue the search for witnesses with Sgt. Lancaster of the patrol, as Lancaster knew where some of the witnesses could be located. Collier called Lancaster on the radio and advised him that Greer would meet Lancaster at the highway patrol zone office in Dexter about 3:45 p. m. Collier then drove to that location, where they met Lancaster. Greer got in Lancaster's patrol car to continue the unfinished investigation. He did not make a practice of "joy riding" with Lancaster.

Collier got back in his patrol car and left to go home. Shortly thereafter, he heard a radio dispatch to Lancaster. The dispatch was to the effect that there was a person, acting as if he were drunk, in a barn near the complainant's home. In Lancaster's testimony, he recalled that the dispatch said that the person was acting suspiciously. Lancaster drove to the location of the complaint, which was a farm home just south of the U.S. 60 and 114 junction in Stoddard County. The field near the barn where the suspect was supposed to be was composed of gumbo. Gumbo is a type of soil that becomes very sticky and hard to walk in when wet and muddy. Several witnesses, including Lancaster, testified that the field was very wet, muddy, and almost impossible to walk through. The gumbo mud had a suction effect, and it required great effort and exertion to pull one foot out of the mud and place it ahead for another step. It was necessary to cross the field to reach the barn. Lancaster and Greer started across the field. As they were crossing the field, Lancaster noting that the field was almost impassible, told Greer that he could go back to the patrol car, if he wanted to. Greer replied that he would go with Lancaster because "we didn't know what we might be getting into."...