Koder v. Tough
| Citation | 247 S.W.2d 876 |
| Decision Date | 07 April 1952 |
| Docket Number | No. 21701,21701 |
| Parties | KODER et al. v. TOUGH. |
| Court | Court of Appeal of Missouri (US) |
Ray E. Watson, F. H. Richart and Rex Titus, Joplin, for appellant.
A. E. Elliott, Donald B. Russell, Nevada, for respondents.
This case arises under the Workmen's Compensation Act. The original claim was filed by Jane Koder, widow of William C. Koder. However, Jane Koder remarried and an amended claim was filed on behalf of Mary Elizabeth and Dorthey Jane Koder, minor children of deceased, William C. Koder, against Claude Tough, Nevada, Missouri, doing business as Cedar Lawn Dairy, and Bituminous Casualty Corporation, as insurer.
The amended claim alleged that William C. Koder met with an accident on September 23, 1949 at the 'intersection of public roads about two miles east of Nevada, Missouri,' by 'collision of automobiles, employee returning from work being performed for employer.' Employer and insurer denied that Koder 'sustained an injury by accident arising out of and in the course of his employment, resulting in his death on September 25, 1951.'
A hearing was had before the Referee, which resulted in a finding in favor of employer and insurer. Claimants applied for a review of the Referee's award by the Industrial Commission of Missouri. A review was granted. On January 9, 1951, the Commission made a final award denying compensation, and found 'from all the evidence that dependents herein failed to prove that the death of William C. Koder was the result of an accident arising out of and in the course of his employment' * * *. From this finding of the Commission denying their claim, dependents appealed to the Circuit Court of Vernon County. On June 15, 1951, that court entered an order setting aside the award of the Commission, and found 'that there is not sufficient competent evidence in the record to warrant the making of the (Commission's) award.' The circuit court found the amount of compensation due claimants to be $5,151. From said judgment employer and insurer have perfected their appeal to this court.
The first witness called by claimants at the hearing was Durwood Tough. He was employed by the Cedar Lawn Dairy, which was operated by his father, Claude Tough. Witness testified that William C. Koder and himself worked at the Dairy in Nevada until noon on September 23, 1949. Koder's duties at the dairy plant were to 'run the bottle washer' and also serve as a mechanic. After lunch on this date Koder, at witness' direction, drove to a farm owned by employer, which was located about three mile east of Nevada. Witness went to the farm about two hours later. Their purpose in going there was to remove the refrigeration body from an International truck which had been used for delivering ice cream for the dairy. There had been an electric motor, one and one-half horse power, on the International truck. Witness testified that several days prior to September 23, he had disconnected this electric motor and placed it on the floor board in the front part of the International truck. Koder worked at removing the refrigeration body until 5 p. m. He then said, 'It is quitting time, I will see you in the morning.' Koder got in his own truck and drove west. At a road intersection about three-quarters of a mile from the farm where he had been working he collided with a truck owned by one Henry Lyeki. Shortly afterwards witness came up to the scene of the collision and there found the electric motor in a ditch. How the motor had gotten into Koder's truck witness did not know, as he had given no instructions to Koder about it. Witness put the motor in his own truck, took it home and, next morning, took it to the dairy.
Witness further stated that deceased lived just west of Nevada; that the public road where the accident took place was a direct route to Nevada and also to deceased's home; that he did not know where Koder was going at the time of the accident; that it was not intended that the motor be installed in the milk plant in Nevada because 'We didn't have no use for it at the time;' that the truck Koder was driving on the day of the accident was his own, and the Cedar Lawn Dairy had nothing to do with it in any way; that deceased drove it back and forth to wherever he was working as his own means of transportation.
Under the terms of Koder's employment he was to receive two quarts of milk a day from the dairy. Witness stated that deceased sometimes got the milk 'at noon, sometimes he would take it of an evening, any time the dairy was open he would come by that would suit him best.'
The next witness for claimants was their mother, Jane Morris, the former Jane Koder. She testified as to the ages of the children. She also stated that she did not get milk from the dairy; that Mr. Koder always brought two quarts home each evening. She also testified that during the time she was married to Mr. Koder he cut some lawns in Nevada and did repair work on cars after his working hours for Cedar Lawn Dairy.
With the above testimony, claimants closed their case, and the employer and insurer produced as their first witness, Claude Tough. He testified that he operated the Cedar Lawn Dairy, had lived in Nevada for 25 years, and that he also operated two farms, which are located east of Nevada. He employed Mr. Koder in March of April of 1949. At the time of this employment the arrangement was that 'he (Koder) was to work at the dairy; when the job was over at the dairy, that is, the bottle washing, he was to do whatever I had for him to do, whether it was at the plant or at the farm or wherever it might be.' The witness further testified that through the employment arrangement Koder was to furnish his own mode of transportation and witness (employer) was not to transport Koder to any of the jobs. Witness also stated that he had no control or management whatever over the truck owned by Koder.
On cross-examination, witness testified that he was not at the plant on the day of the accident; that so far as the arrangement for the milk was concerned Koder had a right to get it at any time of the day or night that he wanted it; that he was not required to return to the plant to get the milk that night or any other night; that Koder, whose working hours were from 8 a. m. to 5 p. m. did not report back to the plant when his day's work was...
To continue reading
Request your trial
-
Heaton v. Ferrell
...McMain v. J. J. Connor & Sons Const. Co., supra; Smith v. Seaman & Schuske Metal Works Co., 344 Mo. 559, 127 S.W.2d 435; Koder v. Tough, Mo.App., 247 S.W.2d 876; Huskey v. Kane Chevrolet Co., supra; Kinkead v. Management & Engineering Corp., Mo.App., 103 S.W.2d 545. See also Hopkins v. J. I......
-
McClain v. Welsh Co., 53117
...v. Durbin Corporation, supra, 416 S.W.2d at 246; Garbo v. P.M. Bruner Granitoid Co., 249 S.W.2d 477, 479 (Mo.App.1952); Koder v. Tough, 247 S.W.2d 876 (Mo.App.1952); Cox v. Copeland Bros. Const. Co., 589 S.W.2d 55, 57 (Mo.App.1979); Garrett, supra, 600 S.W.2d at 519; Baldridge v. Inter-Rive......
-
Corp v. Joplin Cement Co.
...vs. Encyclopedia Americana [Mo.], 290 S.W.2d 105; Garbo vs. [P. M.] Bruner Granitoid Co. [Mo.App.], 249 S.W.2d 477, and Koder vs. Tough [Mo.App.], 247 S.W.2d 876). 'Therefore, compensation must be and same is hereby denied.' The Commission's findings of fact are meager and do not clearly sh......