McMain v. J. J. Connor & Sons Const. Co.

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 43,337 Mo. 40
• Parties: Louise McMain et al., Appellants, v. J. J. Connor & Sons Construction Company et al
• Court: Missouri Supreme Court

85 S.W.2d 43

337 Mo. 40

Louise McMain et al., Appellants, v. J. J. Connor & Sons Construction Company et al

Supreme Court of Missouri

July 9, 1935

Rehearing Denied July 9, 1935.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge; Opinion filed at September Term, 1934, April 17, 1935 motion for rehearing filed; motion overruled at May Term July 9, 1935.

Affirmed.

Philip L. Levi, Leo B. Parker and Joseph Cohen for appellants.

(1) There was not sufficient competent evidence in the record to sustain the finding of the majority of the commission that the accident in which appellants' decedent lost his life did not arise out of and in the course of his employment. (a) The facts in the case being undisputed, the determination of whether the accident arose out of and in the course of employee's employment is one of law for the appellate court. Gillmore v. Ring Const. Co., 61 S.W.2d 764; Hassell v. Reineke Lbr. Co., 54 S.W.2d 758; Seifert v. Heil Packing Co., 52 S.W.2d 579; Adams v. Lilbourn Grain Co., 48 S.W.2d 147; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264; Metting v. Lehr Const. Co., 32 S.W.2d 121. (2) The trip to Kansas City by McMain was the employer's trip, and, consequently the accident which happened during the return arose out of and in the course of McMain's employment. Newman v. Rice-Stix Dry Goods Co., 73 S.W.2d 271; Teague v. Laclede-Christy Clay Products Co., 52 S.W.2d 880; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W.2d 1019; Leilich v. Chev. Motor Co., 40 S.W.2d 605; Wahlig v. Krening-Schlapp Grocer Co., 29 S.W.2d 130; Sawtell v. Stern Bros. & Co., 44 S.W.2d 265; Schulte v. Grand Union Tea Co., 43 S.W.2d 832; Brauch v. Skinner Bros. Mfg. Co., 51 S.W.2d 27; Schimedeke v. Four Wheel Drive Auto Co., 213 N.W. 292; Marks v. Gray, 167 N.E. 181; Bachman v. Waterman, 121 N.E. 8; Haddock v. Edgewater Steel Co., 263 Pa. 120, 106 A. 196; State ex rel. McCarthy Bros. v. District Court of Hennepin County, 140 Minn. 61, 169 N.W. 274; In re Harraden, 118 N.E. 142; Hansen v. N. W. Fuel Co., 144 Minn. 105, 174 N.W. 726; Messer v. Mfgrs. Light & Heat Co., 263 Pa. 5, 106 A. 85; Morrow v. Monark Motor Sales, 167 A. 401; Thomas v. Martin, 23 P.2d 192; Schwimmer v. Kammerman & Kaminsky, 186 N.E. 409; Kolasa v. Stubnickie, 167 A. 246; Texas Indem. Ins. Co. v. Clark, 50 S.W.2d 465; San Bernardino County v. Industrial Acc. Corp., 20 P.2d 673; Boulanger v. First Natl. Stores, 163 A. 261; Vincennes Bridge Co. v. Industrial Comm., 186 N.E. 110; Barrese v. Standard Silk Dye Co., 163 A. 439; Younger v. Motor Cab Transp. Co., 183 N.E. 863, 260 N.Y. 396. (a) The trip to Kansas City being an entity, included going and coming. Newman v. Rice-Stix Dry Goods Co., 73 S.W.2d 271; Teague v. Laclede-Christy Clay Products Co., 52 S.W.2d 880; Brunk v. Hamilton-Brown Shoe Co., 66 S.W.2d 907. (b) A trip is an employer's trip if employer's business was a concurrent cause for the trip. Teague v. Laclede-Christy Clay Products Co., supra; Schmiedeke v. Four Wheel Drive Auto Co., supra; Marks v. Gray, supra. (c) Work done outside of the specific duties of an employee but with the knowledge and acquiescence of employer and for employer's benefit is in the course of employment. Boulanger v. First Natl. Stores, supra; San Bernardino County v. Industrial Accident Corp., supra; Sunnyside Coal Co. v. Industrial Com., 126 N.E. 196. (d) An employee with authority to perform certain services is within the Compensation Act while performing the services, even though the method adopted for the performance may not have been the customary or best method. Schneider Workmen's Compensation Law, sec. 262; Griffin v. Anderson Motor Serv. Co., 59 S.W.2d 805; Sawtell v. Stern Bros. Co., 44 S.W.2d 265; Alexander v. Industrial Bond, 281 Ill. 201; Bylow v. Paper Co., 166 N.Y.S. 874; Guaranty Corp. v. Patero, 180 P. 95; Benson v. Bush, 78 P. 747; Basket Co. v. Kunze, 132 N.E. 349. (3) Compensation should be allowed where a liberal construction will justify it. Pruitt v. Harker, 43 S.W.2d 773; Corrigan v. Western Radio Co., 44 S.W.2d 247; Shaub v. Gunite Concrete & Const. Co., 41 S.W.2d 631.

Carl J. Marold and Shughart & Johnson for respondents.

(1) The finding by the commission that the accident in which McMain lost his life did not arise out of and in the course of his employment was a finding of fact and is conclusive if supported by any competent evidence or any reasonable inferences to be drawn from competent evidence. Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W.2d 1022, 331 Mo. 169; Vollet v. Fed. Brilliant Sign Co., 49 S.W.2d 201; State ex rel. Probst v. Haid, 62 S.W.2d 869, 333 Mo. 390; Schaefer v. Lowell-Krekeler Gro. Co., 49 S.W.2d 209; Smith v. International Shoe Co., 49 S.W.2d 233; Wetter v. Mechanics Iron Works, 49 S.W.2d 236; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604, 328 Mo. 112; Wheat v. Whitney & Son, 34 S.W.2d 158; Sanders v. Central Bldg. Materials Co., 43 S.W.2d 863; Jackson v. Gen. Metal Refg. Co., 43 S.W.2d 865; Duggan v. Toombs-Faye Sash & Door Co., 66 S.W.2d 973; Harke v. Haase, 75 S.W.2d 1001. (2d) The finding of fact by the commission that McMain had gone to Kansas City on November 1st on a purely personal mission was a finding of fact supported by competent evidence and conclusive on appeal. Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Newman v. Rice-Styx D. G. Co., 73 S.W.2d 264; Teague v. Laclede-Christy Clay Products Co., 52 S.W.2d 880, 331 Mo. 147; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 605; Sawtell v. Stern Bros., 44 S.W.2d 264, 226 Mo.App. 485; Wahlig v. Krenning-Schlapp Groc. Co., 29 S.W.2d 128, 325 Mo. 677; Schulte v. Grand Union Tea Co., 43 S.W.2d 832; State ex rel. Probst v. Haid, 62 S.W.2d 872, 333 Mo. 390; Probst v. St. Louis Basket & Box Co., 52 S.W.2d 501; Cassidy v. Eternit, 32 S.W.2d 75, 326 Mo. 342. (3) The finding of fact by the commission that the accident which resulted in McMain's death did not occur at a time or place where his services required him to be nor while he was performing any duty of his employment is a finding of fact supported by competent evidence and conclusive on appeal. R. S. 1929, secs. 3301, 3305; Duggan v. Toombs-Faye Sash & Door Co., 66 S.W.2d 973.

OPINION

Gantt, P. J.

The widow and minor children of George K. McMain, deceased, seek compensation for his death. He drove from Sedalia to Kansas City, and at the time of his death was returning to Sedalia in the automobile. Claim was filed with the commission alleging that his death was the result of an accident arising out of and in the course of his employment. The employer and insurer denied the allegation and alleged that McMain and Huckleberry, who accompanied him, were intoxicated, and further alleged that his death was the direct result of said intoxication. The compensation claimed is $ 8228.

The commission, James, Commissioner, dissenting, found that the accident did not arise in the course of McMain's employment and denied compensation. On review the circuit court affirmed the award denying compensation, and claimants appealed.

The question presented is stated by claimants as follows: "Was this the employer's trip, or was it employee's trip?" A like or similar question has not been determined by this court or an appellate court of this State. In this situation claimants cite Marks v. Gray, 251 N.Y. 90, 167 N.E. 181. In that case the rule is stated as follows:

"We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. [Clawson v. Pierce-Arrow Motor Co., 231 N.Y. 273, 131 N. E. 914.] If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk."

The rule as stated has been approved in Barragar v. Industrial Commission of Wisconsin, 238 N.W. 368.

There was no conflict in the evidence. Even so, they disagree on the inferences that may be drawn from the evidence. In substance the evidence follows:

George K. McMain was an employee of Connor & Sons Construction Company as timekeeper on the construction of a pipe line through counties in Missouri. At the time the headquarters of the construction were at Sedalia, Missouri. He had assistants to help him check the time of the five hundred men on the construction. At seven A. M. and in the afternoon of each day they checked the number of men at work. McMain mailed daily reports of the checks to the head timekeeper, A. G. Baker, at Kansas City, Missouri. The men were paid on the fifth and twentieth of each month. It also was the duty of McMain prior to the fifth and twentieth of each month, to make a summary of the payroll for the preceding half month. He also had office duties to perform, had no regular hours to work, and was sometimes called from home to the office as late as nine P. M. The method of the performance of his duties was left to his discretion. It was customary for him to mail the semi-monthly summaries to Baker at the company's office in Kansas City, Missouri. However, on one occasion, prior to his death, a semi-monthly summary was delivered to Baker at his home in Kansas City, Missouri, by McMain's wife. Baker testified that he (Baker) "guessed" McMain was authorized to personally deliver...