TATLOW, Presiding Judge.
This is an appeal from the judgment of the Circuit Court of Scott County, Missouri, affirming the final award of the Workmen's Compensation Commission.
Appellants' first contention is that, at the time of the accident, respondent was not appellants' employee within the meaning of the Workmen's Compensation Act so as to entitle him to compensation. If this contention is sustained it will finally dispose of the case without considering the other contentions made by appellants.
The dates are as follows:
Date of application for employment, July 5, 1937.
Date of accident, July 15, 1937.
Date that the respondent first went out on a regular run as the driver of the truck, August 17, 1937.
Date he ceased driving the truck, January 26, 1938.
Date the claim was filed, April 7, 1938.
Date of final award, August 19, 1938, which award contained the following:
"* * * the full Commission issued a Temporary or Partial Award, awarding compensation to employee from April 9, 1938, to and including May 20, 1938, and thereafter at the same rate, to and including September 20, 1938, if the disability should so long continue, on or about which date the case was to be reset for further hearing. The matter was reset for hearing on September 15, 1938, at which time the evidence discloses that employers have failed to comply with the Temporary or Partial Award dated August 19, 1938.
"We find from the evidence that the contract of employment between employers and Charles Knupp was entered into at Sikeston, Scott County, Missouri, and that on or about July 15, 1937, he sustained an accidental injury arising out of and in the course of his employment with Potashnick Truck Service, Incorporated, and F. & F. Transportation Company, Incorporated.
* * * * * *
"We find from the evidence that the average weekly wage paid truck drivers on the route which employee was engaged working at the time of the accident was $21.00.
"We find that employers are not liable for medical expenses claimed by employee prior to the date of the first hearing, May 20, 1938.
* * * * * *
"* * *, we find that employee is entitled to compensation for not more than 400 weeks during the continuance of such disability. * * *."
The appeal was filed in the office of the Clerk of the Circuit Court of Scott County, Missouri, on October 21, 1938.
On the 23rd day of January, 1939, and at the regular November Term, 1938, of said Circuit Court, the award of the Missouri Workmen's Compensation Commission was, in all things, affirmed.
The appeal was filed in this court on October 6th, 1939.
The evidence relating to respondent's employment and injury is as follows: "My name is Charles W. Knupp, residing at 522 South Kingshighway, Sikeston, Missouri, where I have lived since about July 3rd, 1936. Prior to that time I lived at Cape Girardeau. I am married. About July 15, 1937, I was coming from St. Louis on one of Mr. Potashnick's trucks. I was employed by Mr. Potashnick."
Respondent further testified:
"I was on a Chevrolet truck and trailer, I don't know the name of the trailer, but the truck was No. 50 and the trailer was T-18, marked F & F Transportation Company. I had made the trip to St. Louis on this particular truck and trailer. Mr. Shelby and myself went up the evening before after a load of Cleo-Cola soda water for the Sikeston Bottling Company. Mr. Gene Potashnick instructed me to go. He was general manager of those corporations, so far as the drivers were concerned. On July 3rd prior to this I contacted Mr. Potashnick with reference to employment as a truck driver, and on that date, I am sure it was on that date, I made application as such and was told that I would have to make two or three or four trips to learn the road, the various terminals over their system. He said I would be taken care of on salary; for me to go ahead and make the trips. It was necessary under his rule that I know the various terminals and how the freight and waybills were handled. We did not discuss whether I would be paid on an hourly basis or a rate basis, I just understood I was to be paid, and later on—I was on a trip basis. I was never paid for that trip. I have since received compensation. I don't know the exact amount, I received compensation immediately after the accident for four or five weeks, and then Doctor McClure at Sikeston told me he thought maybe if I
would get a little exercise that it might help me to recover, I was so stiff, and about the 17th of July—of August, or 18th, I went on the truck to driving and drove that and various other trucks. I believe the first time was the 17th of August. I don't know off hand, but that is awfully close to it. I got compensation between July 15th and August 17th. About that date I went on the truck alone, and I believe the first trip I made down after the accident was on this same 50, T-18; it was rebuilt then. And after that I made trips as it would come my turn from one to three times a week to St. Louis and back until sometime in January, I think the 26th, to be exact. My condition was gradually getting worse, suffered the entire time I was on the truck; and the last three or four trips I made I was forced to get out of the truck always here at Cape Girardeau and Chester and other places in order to rest, I was just suffering so I couldn't ride any more. On the 26th of January I came out of Blytheville, Arkansas, and I was that day until I had to get off at Sikeston, and I haven't since been on the truck; That was the 26th day of January this year. I received compensation regularly until the 9th day of April. That was my first compensable time.
* * * * * *
"I drew $15.54 a week. I saved all my stubs between January 26th and April 9th. Some of these checks are made with a voucher attached and you pull the bottom off and cash the checks—a working man has to cash them right quick—but the voucher sets out what the money is paid out for. Mr. Potashnick agreed in his garage to pay me $15.00 a week in July and he did the first week, and after that he cut it to $10.00 for some reason I never knew. I talked to the Cashier about it, and Mr. Potashnick was in Arkansas or somewhere and I didn't get to see him, and I just let it go at that. I think it is right that I got $15.00 for one week and $10.00 for the others. I have saved these vouchers. Dr. McClure told me to go back to work in August; he told me it might help me to get limbered up. I asked Dr. McClure the advisability of going to an osteopath, he went away on his vacation and advised me to go see one, and I went to this osteopath and taken treatments over a period of several weeks first and last, I don't know just how many. Dr. McClure did not take any X-rays or cause any to be taken. There was an X-ray taken of me the day I was hurt, I think, I am not sure. It was taken at the hospital at Red Bud, I don't know the name of it. I have had other accidents, sometime in October, 1934. A Burlington train South of Marion, Illinois, struck a truck on Highway 147, six miles South. From that date until I began driving for Potashnick, I was mining and hauling coal on a truck from Illinois. My duties when I was operating my own truck, was to go to the coal mine and load it with coal and and come to Sikeston and Cape Girardeau and shovel it off. I shoveled it off myself lots of it. I had no other occupation between 1934 and 1937. In the 1934 accident I got my back hurt, on the lower left hand side, no other part of my body. I had a scalp wound was all, no injury to my neck, I was not injured except my back on the lower left hand side, and a scalp wound. I received no fractures in that accident. I was X-rayed for that accident in St. Louis by Dr. Loyd Hyde. You represented me in that case. That case was tried in the Circuit Court in St. Louis. The wound on my head was a little scalp wound on top. (indicating) I will be forty-seven in December. I never had my neck hurt before this accident on July 15th. I have never been hurt other than I have mentioned, in my back. My neck was never hurt before. I worked all the time after the accident in '34 hauling with a truck. I am married. If my memory serves me right we drove up to St. Louis that night light, I am not sure. We were hauling Cleo-Cola on the way back. I had made prior trips. The first trip I went up with Ott Bascom, who is a driver out of Dexter. We went up with livestock and came back with general freight. I can't tell where this freight was delivered. I got off the truck at Sikeston and Bascom finished the trip from Sikeston to Dexter with the rest of the load. I helped load all the freight that was on the dock that afternoon. It was general freight, most anything weighing half a pound to three tons, sometimes it is so heavy we have to put rollers under it. I don't remember any particular items; I made one other trip before the accident. I made two trips before the accident, I made a trip with a driver by the name of York, at the request of Mr. Potashnick. Potashnick would make the request in the afternoon before we would leave that night. I talked to Mr. Potashnick when I made application for the job. I never talked to him any more about it until I saw him in the hospital, except just to meet him and say hello and ask him when I...
