McCoy v. Simpson

• Decision Date: 07 May 1940
• Docket Number: 36758
• Citation: 139 S.W.2d 950,346 Mo. 72
• Parties: Mrs. Laura McCoy, Claimant, v. H. G. Simpson, Doing Business as Simpson Oil Company, Employer, Hardware Mutual Casualty Company, Insurer, Appellants
• Court: Missouri Supreme Court

139 S.W.2d 950

346 Mo. 72

Mrs. Laura McCoy, Claimant, v. H. G. Simpson, Doing Business as Simpson Oil Company, Employer, Hardware Mutual Casualty Company, Insurer, Appellants

No. 36758

Supreme Court of Missouri

May 7, 1940

Rehearing Denied May 7, 1940.

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge. Opinion filed at September Term, 1939, March 6, 1940 motion for rehearing filed; motion overruled at May Term 1940, May 7, 1940.

Affirmed.

Oliver & Oliver for appellants.

(1) Burden is on claimant in a compensation case to show with reasonable certainty that the employee sustained injury or death in an accident arising out of and in the course of his employment. An award for compensation cannot be based on guess, speculation, mere possibilities or even probability. Porter v. Brimm-Jensen Co., 269 N.W. 96; Allison v. Eyermann Const. Co., 43 S.W.2d 1063; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961; Jackson v. Aetna Bricklaying & Const. Co., 59 S.W.2d 708. (2) When an employee is charged with the performance of a duty and is found injured at a place where his duty required him to be, there is a presumption that he was injured in the course of his employment. But this is a rebuttable presumption by substantial evidence and when rebutted by substantial, uncontradicted testimony the presumption disappears and employee must go forward and show that accident arose out of and in the course of his employment. Oswald v. Caradine Hat Co., 109 S.W.2d 893; Griffin v. Anderson Motor Service Co., 227 Mo.App. 855, 59 S.W.2d 805; Humphrey v. Tietjen & Steffen Milk Co., 235 A.D. 470, 257 N.Y.S. 768, 261 N.Y. 549; Kobyra v. Adams, 176 A.D. 43, 162 N.Y.S. 269; Humphrey v. Hogan, 104 S.W.2d 769. And mere fact that employee is injured where his duties may have taken him does not raise the presumption that the accident arose out of or in the course of employment. Des Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961; Snorgrass v. Cudahy Packing Co., 83 S.W.2d 228. (3) Competent, substantial and undisputed testimony of witnesses who are not shown by the record to have been impeached cannot be ignored by the commission. Stepaneck v. Mark Twain Hotel, 104 S.W.2d 766. This is especially true when such witnesses were available to claimant and would normally have been used by her had not their testimony been unfavorable, and it was necessary for the employer and insurer to put the witnesses on the stand to show the true facts in the case. Allison v. Eyermann Const. Co., 43 S.W.2d 1063; Lamkins v. Copperclad Malleable Range Corp., 42 S.W.2d 914; Humphrey v. Hogan, 104 S.W.2d 769. (4) A general finding of fact by the commission implies the finding of every fact necessary and essential to support that general finding. State ex rel. Buttiger v. Haid, 51 S.W.2d 1008; Probst v. St. Louis Basket & Box Co., 52 S.W.2d 501. (5) Testimony detailing conversation had between witness and dead party is considered weakest type of testimony and is to be given very little weight. Grantham v. Gossett, 182 Mo. 651; Pitts v. Weakley, 155 Mo. 138; Collins v. Harrell, 219 Mo. 279, 174 P. 67. (a) Conversations between a dead man and witness, when not a part of the res gestae, are incompetent and cannot be considered as evidence in support of an award. Munton v. Driemeier Storage & Moving Co., 223 Mo.App. 1124, 22 S.W.2d 61. (6) There was not sufficient competent evidence in the record to sustain a finding that the accident in which respondent's decedent lost his life arose "out of" and in the course of his employment. Dugan v. Toombs-Fay Sash & Door Co., 228 Mo.App. 61, 66 S.W.2d 973; McMain v. Connor & Sons Const. Co., 387 Mo. 40, 85 S.W.2d 43; Raidout v. Rose's 5c, 10c & 25c Stores, 171 S.E. 642; Howards v. Kein, 258 N.W. 478; Barragar v. Industrial Comm., 205 Wis. 550, 238 N.W. 368; Mark's Dependents v. Gray, 167 N.E. 181; Humphrey v. Hogan, 104 S.W.2d 767; Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645.

Blanton & Montgomery for claimant, respondent.

(1) The Workmen's Compensation Commission are the triers of the facts, hence are the sole judges of the credibility of the witnesses, and the weight and value to be given their testimony. Murphy v. St. Louis County Water Co., 54 S.W.2d 70; Yancey v. Egyptian Tie & Timber Co., 95 S.W.2d 1231; Pearce v. Modern Sand & Gravel Co., 99 S.W.2d 854; Bowen v. Hall-Baker Grain Co., 67 S.W.2d 537. (a) And the commission may reject all, or any part, of any witness' testimony, even though such testimony is wholly uncontradicted. State ex rel. v. Trimble, 271 S.W. 47; Bank of Slater v. Harrington, 266 S.W. 498; Dempsey v. Horton, 84 S.W.2d 624; Sanders v. Central Bldg. Materials Co., 43 S.W.2d 863. (b) Appellate courts have nothing to do with the credibility of the witnesses, or the weight and value of their testimony, but confine themselves solely to ascertaining whether the record contains sufficient competent evidence, which if believed by the commission, would support the award. Sec. 3342, R. S. 1929; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604; Thoms v. Kaysing Iron Works, 54 S.W.2d 764; Brewer v. Ash Grove Lime & Portland Cement Co., 25 S.W.2d 1091. (c) And the court looks only to testimony tending to support the award, and draws all favorable inference therefrom, and disregards all unfavorable testimony and inferences. Hammack v. West Plains Lbr. Co., 30 S.W.2d 651; Wilson v. Brownfield Const. Co., 74 S.W.2d 381; Burgstrand v. Crowe Coal Co., 77 S.W.2d 97; Thurman v. Fleming-Young Coal Co., 49 S.W.2d 288. (2) It is conceded that McCoy was on business for his company, at Kennett, until late in the afternoon. Hence, if he remained at Kennett until he started his fatal homeward journey about midnight, it is wholly immaterial that he may have spent (part or even all of) the intervening time for personal pleasure, since his starting home to store employer's car, and to spend the night, was, in law, a resumption of his employment, and he was, in legal contemplation, in the course of his employment when injured. Deem v. Lee Merc. Co., 85 S.W.2d 441; Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d 832; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 903; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264. (3) Workmen's Compensation cases need not be proven by direct evidence, but may be proven by circumstantial evidence, and it is not essential that all doubt be removed, but only that the finding be based upon a reasonable probability. Zimmerman v. Goodfellow Lbr. Co., 56 S.W.2d 608; Tralle v. Chevrolet Motor Co., 92 S.W.2d 966; Lanahan v. Hydraulic-Press Brick Co., 55 S.W.2d 327; DeMoss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961. (4) The Compensation Act should be liberally construed in favor of employees, and any doubt as to right to compensation should be resolved in favor of the persons to be benefited. Pruitt v. Harker, 43 S.W.2d 611; Bicanic v. Kroger Gro. & Baking Co., 83 S.W.2d 923; Kinyon v. Kinyon, 71 S.W.2d 78; Shout v. Gunite Concrete & Const. Co., 41 S.W.2d 629.

OPINION

Clark, J.

Appeal by the employer and insurer from a judgment of the circuit court of Dunklin County affirming a final award made by the Workmen's Compensation Commission to the dependent widow of Ruskin G. (Pete) McCoy. The award is for $ 20 per week for 450 weeks (or until prior death or re-marriage of claimant) and for $ 80 medical aid and $ 150 burial expense; all payments to begin as of November 24, 1935. The death of McCoy resulted from an automobile collision on a public highway near Kennett, Missouri, on said date.

The sole question here is whether the award is supported by sufficient competent evidence to show that the accident from which McCoy's death resulted arose out of and in the course of his employment.

He was employed by the Simpson Oil Company, whose business was and is the sale of gasoline, motor oil and tires at wholesale and whose main office is at Charleston, Missouri. McCoy's home was at Sikeston, Missouri. He was a traveling salesman and sales supervisor for the company over nineteen counties in the southeastern part of the state. His duties were to sell the products of the company, work with its agents, promote sales, obtain leases for oil stations, and contracts for the handling of his employer's products, collect accounts, etc. He was paid a salary and the company furnished and maintained an automobile for his use. He had no regular hours of work and it was not unusual for him to devote time to the company's business until late hours at night and some times on Sundays. The general manager of the company testified that he had worked with McCoy as late as 1:30 in the morning and on Sunday.

On the afternoon of November 23, 1935, McCoy was directed to go to Kennett to supervise an advertising stunt for his company. This stunt consisted in throwing a number of turkeys from the roof of a building, each turkey having a slip of paper attached to it authorizing the person catching it to obtain some product or service from the oil company. McCoy arrived in Kennett about four P. M. while the stunt was in progress. He purchased one of the turkeys from a man who had caught it and placed it in the back of the company car he was driving. Shortly after midnight of the same day he met his death by driving the car into the rear of another automobile on Highway No. 84 a short distance from Kennett and on the usual route between Kennett and Sikeston. In the car with McCoy at the time of the fatal collision was a man by the name of Sam Graham whose home was at Sikeston. Also in the car was found the turkey which McCoy had purchased and samples of oil and gasoline and papers belonging to the oil company.

Appellants concede that McCoy transacted some company business and remained at Kennett until late in...