Lewis v. Lowe & Campbell Athletic Goods Co., No. 42673

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

Page 800

247 S.W.2d 800
LEWIS et al.
v.
LOWE & CAMPBELL ATHLETIC GOODS CO. et al.
No. 42673.
Supreme Court of Missouri, Division No. 1.
April 14, 1952.

Page 801

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

Page 802

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

Page 803

your men to contact their customers by telephone, telegraph or letter, or by personal contact? A. By personal contact.'

(The evidence also showed that...

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18 practice notes
  • Trask v. Davis, No. 7513
    • United States
    • Court of Appeal of Missouri (US)
    • 26 Febrero 1957
    ...to the act in question. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800, and cases cited at loc. cit. 804; see discussion and cases cited in Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Stephens v. F......
  • State v. Thornton, No. A--8
    • United States
    • United States State Supreme Court (New Jersey)
    • 22 Octubre 1962
    ...same effect are Great American Indemnity Company v. McCaskill, 240 F.2d 80 (5 Cir. 1957); Lewis v. Lowe and Campbell Athletic Goods Co., 247 S.W.2d 800 (Mo.Sup.Ct.1952). See also, White v. United States, 216 F.2d 1 (5 Cir. 1954); Thornton v. State, 253 Ala. 444, 45 So.2d 298 (Sup.Ct.1950); ......
  • Crooms v. Ketchum, No. 50139
    • United States
    • Missouri Supreme Court
    • 8 Junio 1964
    ...Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800. * * * Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the Supervisor of Liquor Co......
  • Alexander Film Co. v. Industrial Commission, No. 18339
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Diciembre 1957
    ...Mathews v. Great Northern Ry. Co., 81 Minn. 363, 84 N.W. 101, 83 Am.St.Rep. 383; Lewis v. Lowe & Campbell Athletic Goods Co., Mo., 247 S.W.2d 800; Ervin v. Myrtle Grove Plantation, 206 S.C. 41, 32 S.E.2d 877, are a few typical decisions. See also 113 A.L.R. 288 and Wigmore On Evidence (......
  • Request a trial to view additional results
18 cases
  • Trask v. Davis, No. 7513
    • United States
    • Court of Appeal of Missouri (US)
    • 26 Febrero 1957
    ...to the act in question. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800, and cases cited at loc. cit. 804; see discussion and cases cited in Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Stephens v. F......
  • State v. Thornton, No. A--8
    • United States
    • United States State Supreme Court (New Jersey)
    • 22 Octubre 1962
    ...same effect are Great American Indemnity Company v. McCaskill, 240 F.2d 80 (5 Cir. 1957); Lewis v. Lowe and Campbell Athletic Goods Co., 247 S.W.2d 800 (Mo.Sup.Ct.1952). See also, White v. United States, 216 F.2d 1 (5 Cir. 1954); Thornton v. State, 253 Ala. 444, 45 So.2d 298 (Sup.Ct.1950); ......
  • Crooms v. Ketchum, No. 50139
    • United States
    • Missouri Supreme Court
    • 8 Junio 1964
    ...Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Lewis v. Lowe & Campbell Athletic Goods Co., Mo.Sup., 247 S.W.2d 800. * * * Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the Supervisor of Liquor Co......
  • Alexander Film Co. v. Industrial Commission, No. 18339
    • United States
    • Colorado Supreme Court of Colorado
    • 23 Diciembre 1957
    ...Mathews v. Great Northern Ry. Co., 81 Minn. 363, 84 N.W. 101, 83 Am.St.Rep. 383; Lewis v. Lowe & Campbell Athletic Goods Co., Mo., 247 S.W.2d 800; Ervin v. Myrtle Grove Plantation, 206 S.C. 41, 32 S.E.2d 877, are a few typical decisions. See also 113 A.L.R. 288 and Wigmore On Evidence (......
  • Request a trial to view additional results

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