McCue v. Studebaker Automotive Sales, Inc.
| Decision Date | 05 April 1965 |
| Docket Number | No. 24166,24166 |
| Citation | 389 S.W.2d 408 |
| Parties | Edna Viola McCUE, As Dependent and Surviving Widow of Edward Vincent McCue (Employee), Respondent, v. STUDEBAKER AUTOMOTIVE SALES, INC., a/b/a Frontier Motors (Employer), and Zurich Insurance Company (Insurer), Appellants. |
| Court | Missouri Court of Appeals |
Ralph G. Trogdon, John R. Caslavka, Kansas City, Shughasrt, Thomson & Kilroy, Kansas City, of counsel, for appellants.
Bott, Sharp & Carey, Larry Worrall, Kansas City, for respondent.
MAUGHMER, Commissioner.
Claimant, Edna Viola McCue, the surviving widow and dependent of Edward Vincent McCue, automobile salesman who was killed in an automobile accident, was awarded a judgment for death benefits under the Workmen's Compensation Act of Missouri against his employer and its insurer. The award of the commission was affirmed by the circuit court. Both the employer and the insurer have appealed. The sole alleged error presented on appeal is that the employee's death did not arise out of and in the course of his employment.
It was stipulated and agreed that the employee was killed in an automobile accident on January 31, 1963, and at the time was an employee of defendant Studebaker Automotive Sales, Inc. d/b/a Frontier Motors, was working under the provisions of the Missouri Workmen's Compensation Law and that the employer's liability was fully insured by defendant Zurich Insurance Company. There was no dispute as to the amount of the weekly wage or that a proper claim had been timely filed. Actually appellants' sole contention is that at the time of the accident the employee was so completely under the influence of liquor or alcohol as to render it impossible for him physically and mentally to have been engaged in the course of his employment.
The fatal accident occurred at about 7:00 p. m. on the Intercity Viaduct between Kansas City, Kansas and Kansas City, Missouri, and while employee was traveling east. Mr. McCue was at all times furnished a Demonstrator for use in his work as a salesman and was operating such an automobile when he was killed.
On the day of the accident the employee went to work about 7:30 a. m. According to the witness Fred v. Whitaker, used car manager for employer, McCue was 'on the floor' from 8:30 a. m. until 2:00 p. m., when he left the show room at 2735 Main Street, Kansas City, Missouri. Whitaker said McCue told him when he left shortly after 2:00 p. m. that he had a 7:30 appointment that evening with a prospective customer at the company show room; that at about 4:00 or 4:30 p. m. McCue called by telephone, again mentioned the 7:30 appointment and inquired if Whitaker would be present that evening. Whitaker said McCue was 'one of the top salesmen's, that a man who 'sells as many cars as McCue does, works thirteen, fourteen hours a day as a general diet'. He said McCue's voice was normal during the telephone conversation, but that he had on at least two occasions sent him home 'for drinking'. On cross-examination Whitaker stated that the employee told him that 'he was going to Kansas City, Kansas to see a man about a deal on a new car and he had made an appointment that evening'.
Evert Appleberry, who identified himself as owner and operator, as of January 31, 1963, of the Appleberry Hardware, 1809 Minnesota Avenue, said McCue came to his place of business about 5:45 p. m. on that date to pay a bill; that they conversed; that McCue was in the store from 30 to 40 minutes; that he made a payment on his bill and they discussed the purchase of a Studebaker Lark for Appleberry's daughter. Mr. Appleberry stated that the direct route from his hardware store to Kansas City, Missouri would be 'down Minnesota Avenue to the Intercity Viaduct' (where the accident occurred). He said McCue's conversation in the store was clear and coherent; that he did not stagger and that he drove his car out of the parking place with no trouble, although he detected 'that he had been drinking'.
The witness Sherman Thompson operated a restaurant at 1531 1/2 Prospect, where beer is sold. He had known McCue for about six years. He said McCue called him on the telephone about 4:00 or 5:00 p. m. on the day in question and made an appointment for 'around 6:00 o'clock'. The purpose of the appointment was to discuss the possible purchase of an automobile. He, too, said the direct route from Minnesota Avenue in Kansas City, Kansas to Kansas City, Missouri and his restaurant would be over the Intercity Viaduct. The appointment was not kept by McCue and Thompson learned of his death later that night.
Mrs. McCue, claimant, said that she and deceased were married on December 20, 1930, and that he was at home on the day of his death from about 5:30 p. m. and until 6:30 p. m. She said he told her he was going out to show a car and invited her to go along.
Three doctors were produced by appellants and testified. Dr. Richard C. Ibarra, M.D., deputy coroner, Wyandotte County, Kansas, was on duty at St. Margaret's Hospital, Kansas City, Kansas, and in the emergency room when the ambulance bearing Mr. McCue arrived after the accident. Dr. Ibarra pronounced him dead on arrival. He drew two blood samples, gave one to the Kansas City, Missouri police and one to Dr. Lauren Moriarty of Medical Laboratories Associated. An autopsy was performed by Dr. Ralph J. Rettenmaier, coroner.
Dr. John E. Johnson, M.D. of Medical Laboratories, with pathologists under his supervision, tested the sample of McCue's blood. The result in part was 'Alcohol .175 milligrams percent, or .175 percent.'
Dr. Ralph Emerson Duncan, M.D. has, since 1933, operated the Ralph Clinic, which specializes in treating alcoholism. He testified that McCue had been a patient at the Ralph Clinic from January 18, 1960 until January 28, 1960 on a continuous abstinence program. Dr. Duncan commented on the probable effect of...
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