Huskey v. Kane Chevrolet Co.

• Decision Date: 06 July 1943
• Docket Number: No. 26139.,26139.
• Parties: HUSKEY v. KANE CHEVROLET CO. et al.
• Court: Missouri Court of Appeals

173 S.W.2d 637

HUSKEY v. KANE CHEVROLET CO. et al.

No. 26139.

St. Louis Court of Appeals. Missouri.

July 6, 1943.

Rehearing Denied September 10, 1943.

Appeal from Circuit Court, Jefferson County; Edward T. Eversole, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Frances Edna Huskey, claimant, to recover compensation for the death of J. B. Huskey, employee, opposed by the Kane Chevrolet Company, employer, and the Utilities Insurance Company, insurer. From a judgment affirming an award of the Workmen's Compensation Commission denying the claim, claimant appeals.

Affirmed.

Samuel Richeson, of Potosi, for appellant.

Matthes & Weier, of Hillsboro, and Wm. G. Burch, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a compensation case. The claim was denied by the Commission. On appeal the Circuit Court of Jefferson County affirmed the finding of the Commission and claimant has appealed to this Court.

Claimant is the widow of J. B. Huskey, deceased employee; Cecil Kane, doing business at De Soto, Missouri, as Kane Chevrolet Company, was the employer, and Utilities Insurance Company, the insurer. The defense was that the accident resulting in the employee's death did not arise out of and in the course of his employment.

For several months prior to October, 1940, deceased had worked as a part-time salesman of automobiles for Kane, and on or about October 1, 1940, began work for Kane as an automobile mechanic, and continued his activities as a part-time salesman. Huskey had no assigned territory as a salesman; he used his own automobile when necessary and called on prospective buyers when and where he chose, usually of an evening or at night after his work as a mechanic was done for the day. On October 5, 1940, Newman Edwards, who lived at that time at St. Charles, Missouri, went to De Soto to try and trade a Plymouth automobile with Huskey for a Chevrolet truck. Edwards and Huskey had discussed a trade on two prior occasions; they were old friends and had known each other all of their lives. It was about 8:00 o'clock in the evening of October 5, 1940, when Edwards met Huskey at a filling station across the street from Kane's garage. Edwards got in Huskey's car and they drove up and down the street a few times and left De Soto around 10:00 o'clock at night and drove down the highway to Potosi, where they stopped at a night club. Edwards had made no suggestions as to where they would go. They remained in Potosi around an hour or an hour and one-half in company with two girls who were at the night club when they arrived and who were old acquaintances of Huskey's. They were eating and drinking and dancing while at the night club. They left a little after 12:00 o'clock and proceeded on Highway 21 towards De Soto, and somewhere along the route the automobile left the road and struck a tree. From injuries received Huskey died in the early morning of October 6th.

At the hearing before the Referee, Edwards was asked if on the way back from Potosi to De Soto and before the accident he had a conversation with Huskey with reference to the sale by Huskey to him of an automobile. The question was objected to for the reason that Huskey being dead Edwards was disqualified as a witness. The objection being sustained by the Referee, claimant's counsel made an offer of proof to show by the witness that during the time that deceased and the witness were traveling from Potosi towards De Soto and to the place of the accident they had a conversation in which Edwards discussed with the deceased the purchase of an automobile from the deceased as a representative of Kane Chevrolet Company; that deceased offered to allow Edwards the sum of $250 for his automobile, which offer was subject to the approval of Kane, and that Edwards accepted the offer.

On cross-examination Edwards said that he and Huskey didn't necessarily start to Potosi; they drove down the street and back and started driving out the Potosi road and ended at Potosi; that they didn't have a destination; that they got there between 10:00 and 10:30 and stopped at the night club, and went over to the table where the two girls were sitting. Edwards said he had a bourbon and danced with one of the girls and with some other girl from De Soto. He further said that the purpose of his going to De Soto was for him and Mr. Huskey to make a deal for his automobile. He further said that: "It was not necessary to go to Potosi as far as he was concerned; deals can be made any place; I suppose the deal could have been made any place as far as I was concerned; it wasn't necessary for Mr. Huskey to take me to Potosi and entertain me but it is something that is done by all salesmen." He further said: "The offer that was discussed was made on the road to Potosi. I cannot tell you why Mr. Huskey went to Potosi."

There was testimony that Huskey had associated with and went out with the two girls they met at Potosi for some time before October 5th, and had known them all of their lives; that on the afternoon of October 5th the girls were in De Soto and were seen in company with Huskey.

Section 3691, R.S.1939, Mo.R.S.A. § 3691, provides for compensation for personal injury or death of the employee by accident "arising out of and in the course of his employment". While it is not always a simple matter to determine whether in a given case the accident arose out of and in the course of the employment, the courts have in general terms interpreted the meaning of the statute to be that an injury arises "out of" the employment when there is a 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. Smith v. Seaman & Schuske Metal Works Co., 344 Mo. 559, 127 S.W.2d 435. The compensation law is not a provision for accident insurance, and in order for an injury to be compensable it must be shown that the act being performed by the employee at the time of the accident was incident to the conditions under which the employee was required to work, or was an act which the employer might reasonably have anticipated might be done in connection with the work. And it is encumbent upon the claimant to establish both that the accident arose "out of" the employment, and also "in the course of" the employment, and the showing of one without the other will not be sufficient to authorize an award in favor of the claimant. Duggan v. Toombs-Fay Sash & Door Co., 228 Mo.App. 61, 66 S.W.2d 973; Metting v. Lehr Const....