Lewis v. Lowe & Campbell Athletic Goods Co., 42673

Citation247 S.W.2d 800
Decision Date14 April 1952
Docket NumberNo. 42673,No. 1,42673,1
CourtUnited States State Supreme Court of Missouri
PartiesLEWIS et al. v. LOWE & CAMPBELL ATHLETIC GOODS CO. et al

Moser, Marsalek, Carpenter, Clear & Carter and J. C. Jackel, St. Louis, for appellants.

Charles M. Warner, Ernest E. Baker, St. Louis, for respondents.

HOLLINGSWORTH, Judge.

Defendants appeal from a judgment of the Circuit Court of St. Louis County affirming an award of compensation in the sum of $12,150, made by the Industrial Commission of Missouri, Division of Workmen's Compensation, in favor of claimants, the widow and minor children of Russell B. Lewis, against his employer, Lowe & Campbell Athletic Goods Company, and its insurer, Maryland Casualty Company.

Russell B. Lewis was killed in an automobile accident between the hours of 3:30 and 4:00 o'clock on Sunday morning, October 2, 1949, on U. S. Highway 66, north of Ladue Road, in St. Louis County. The Referee, and the full Commission on review, found that he was 'on a trip for his employer' and that the accident arose out of and in the course of his employment.

Appellants assert that the award and the judgment affirming it are without support of any competent evidence and cannot stand. The sole matter for determination is, therefore, whether the award is supported by competent and substantial evidence upon the whole record. Seabaugh's Dependents v. Garver Lumber Company, 355 Mo. 1153, 200 S.W.2d 55; Scott v. Wheelock Bros., Inc., 357 Mo. 480, 209 S.W.2d 149. Determination of this question requires a detailed statement of the evidence relating to the scope of Lewis' employment and the purpose of the trip during which he was killed.

Mr. Lewis resided with his family at 8017 Washington, Vinita Park, St. Louis County. He was and for more than four years had been in the employ of Lowe & Campbell Athletic Goods Company as a salesman of athletic paraphernalia, working out of his employer's branch office in St. Louis. His territory embraced the southeastern portion of Missouri, including, among others, the cities of Potosi, in Washington County, and Pacific, in Franklin County. He called upon schools for the purpose of selling football and basketball equipment and upon golf professionals and dealers. He used his own automobile in the performance of his duties and was allowed his expenses in so doing. He planned his own trips, had no regular hours, did not leave his home or return thereto at regular hours, and was away from home on many holidays and about ten per cent of week ends. He was supplied with and kept in his car brief-cases, catalogs, expense account forms, stationery, and samples of football, basketball, golf, tennis and other seasonal equipment. He was also fond of hunting and kept a shotgun and hunting clothing in his car.

Lewis was hired by Creed Joyce, manager of his employer's St. Louis office and worked under Mr. Joyce's general supervision. At the time Lewis was hired, Joyce told him that he was to work nights and Sundays, if necessary to get the business. He was also told by Joyce that his employer believed in entertaining customers and that his expenses incurred in so doing would be paid by the employer.

Mr. Joyce testified that expense accounts of salesmen who went on hunting and fishing trips with customers in order to promote good will were regularly approved, and that for the past four or five years Lewis had attended meetings of the Franklin County Schoolmasters Association held at a cabin owned by Sam Sprout at Coldwater, Missouri, and that the employer had paid a part of the expense incurred at these meetings.

Weekly news bulletins were furnished by the employer to deceased containing suggestions as to sales promotion. Among these was one containing the following, encircled in blue pencil by deceased's supervisor: 'The older salesmen will tell you their best sales are made on Saturday and Sunday and that's because the coach has time to talk to you. The old timers work nights, too. * * *' Another, also similarly encircled, read: '* * * The fellow who leaves home Tuesday morning and gets back Friday--and, yes, some do--is not going to get very far. * * *'

Among the customers of his employer upon whom Lewis regularly called and sold employer's merchandise were Herbert Baker, principal of the high school at Pacific; J. D. Wilson, superintendent of a consolidated school district, also residing in Pacific; and Rolin Jones, superintendent and purchasing agent of a reorganized school district, residing at Potosi.

On September 12th, Lewis met Herbert Baker and J. D. Wilson, two of the aforesaid customers, in Wilson's office in Pacific. Also present was Sam Sprout, who represented Rand-McNally Company, which company sells school supplies. Sprout, as stated, owned the above mentioned clubhouse at Coldwater, about forty miles southeast of Potosi, whereat he had arranged to entertain the Franklin County Schoolmasters Association on October 2nd. Sprout, in the presence of Baker and Wilson, asked Lewis to come to the clubhouse on the week end of October 2nd and to share the expense of the entertainment. The Referee sustained an objection to elicitation of Lewis' answer, whereupon claimants offered to prove that Lewis said he would go to the clubhouse over that week end. On September 24th, Sprout mailed a letter addressed to Lewise in care of 'Lowe & Campbell Athletic Goods, 321 N. 14th Street', St. Louis. Over objection of appellants a duly identified carbon copy of that letter was placed in evidence. It reads:

'Formal arrangements are being formulated for the trip to my cabin. The school people of Franklin County have all been sent a letter by Dave Max. I hope we have a good crowd.

'Since you are not certain that you can be there early Saturday I think it is best that I get the [refreshments], and we can divide the expense when it is over. All meals will be taken at the lodge. Will look forward to seeing you Saturday.'

(The Association was entertained by Sprout at the clubhouse on October 2nd.)

On September 28th or 29th, three or four days before Lewis was killed on October 2nd, he called on Mr. Jones, the purchasing agent of the reorganized school district of Potosi. Jones testified that on that occasion he gave Lewis an order for merchandise and inquired when some basketball suits ordered in the spring for fall delivery would be delivered. Jones was perturbed because they had not arrived. Lewis told Jones he would check into the matter immediately and that in all probability he would be back or through Potosi over the week end. (At one point in his testimony witness used the words 'a week end'; at another he said 'the week end'.)

In connection with this phase of the evidence, Mr. Joyce, Lewis' supervisor, testified on cross examination: 'Q. Mr. Joyce, if Mr. Lewis had wanted to communicate with Mr. Rolin Jones in any way about any basketball suits * * * he could have done that by telephone or telegraph or by letter? Isn't that true? A. Yes.'

And on redirect examination: 'Q. Mr. Joyce, as salesman or as manager for Lowe and Campbell, did you encourage your men to contact their customers by telephone, telegraph or letter, or by personal contact? A. By personal contact.'

(The evidence also showed that Lewis did not advise Jones by telephone, telegram or letter as to the probable date of delivery of the basketball suits.)

On this same occasion, September 28th or 29th, Joe Gibson, Jones' Secretary, and Ralph Corse, athletic director and coach of softball, basketball and track at Potosi High School, were present. There was some talk about hunting. Corse testified he told Lewis that squirrel hunting was good around Potosi, and if he wanted to go hunting with them over the week end, 'we were leaving that morning before six o'clock but that we would wait on him until six.' Jones had lunch with Lewis and they conversed about hunting. Lewis asked Jones if he was a hunter, to which Jones replied he was not much of a hunter and did not have much equipment. Lewis asked Jones if he would go along with him if he came down, and Jones said Lewis would have to furnish the equipment.

On Saturday, October 1st, Lewis did not go out on his territory. He went to his employer's office that day. That evening after, and probably before, dinner, he told Mrs. Lewis he would have to leave early the next morning; that it was necessary because they had some unfinished work down at Potosi that needed to be finished; that they were meeting early to have a hunt at the same time; and that he would try to be back in time to hear the broadcast of the World Series baseball game that afternoon. On cross examination, Mrs. Lewis testified he told her he had obtained an order for some basketball suits some time previous to that date, these suits had not been delivered and the purchaser had inquired as to when deliveries were to be made, and he was going to tell them on that Sunday, October 2nd, when delivery was likely to be made.

Upon retiring that night, Lewis set the alarm clock for 3:00 a. m. He was ready to leave at 3:30 a. m. Mrs. Lewis remained in bed and did not see him leave. At a point on U. S. Highway 66 By-Pass, also known as Lindbergh Road, two blocks north of Ladue Road in St. Louis County, his car was involved in a collision with another car between 3:30 and 4:00 a. m., and he was fatally injured.

A briefcase and samples, including basketball shoes, pants and shirts, and a hunting coat and trousers, were recovered from his automobile. Golf balls and shotgun shells were scattered along the highway. A shotgun was in the trunk of the car. On Saturday, October 1st, Mrs. Lewis observed that he had the samples and equipment that he carried in his work. No contention is made that he was not proceeding along a regularly travelled route to Potosi at the time of the collision.

Appellants contend that in view of the testimony to the effect it was not necessary for Lewis to make a trip to Potosi to...

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