Nations v. Barr

• Decision Date: 08 December 1931
• Docket Number: No. 21742.,21742.
• Citation: 43 S.W.2d 858
• Parties: NATIONS v. BARR et al.
• Court: Missouri Court of Appeals

43 S.W.2d 858

NATIONS v. BARR et al.

No. 21742.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from St. Louis Circuit Court; John T. Fitzsimmons, Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Verdie Nations, opposed by Wilbur L. Barr, employer, and the Globe Indemnity Company, insurance carrier. The Compensation Commission awarded compensation for permanent partial disability, but the award was reversed on appeal to the Circuit Court, and claimant appeals.

Judgment of Circuit Court reversed, and cause remanded, with directions.

Hall & Dame, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert and Warren F. Drescher, Jr., all of St. Louis, for respondents.

SUTTON, C.

This is an action to recover compensation under the Workmen's Compensation Act (Rev. St. 1929, § 3299 et seq.). Plaintiff is the dependent widow of Almore D. Nations. He was injured while in the employ of defendant Wilbur L. Barr. He afterwards died, but not as a result of his injury. Plaintiff is his dependent widow. Defendant Globe Indemnity Company is the insurer of defendant Barr against liability as an employer under the Compensation Act.

Plaintiff filed two claims before the Compensation Commission, one for the death of her husband, and the other for permanent partial disability, both alleged to have resulted from his injury. The injury suffered by the employee, for which compensation is claimed, was a fracture of the right femur. The two claims were consolidated and heard together. The original hearing was had before Commissioner Shaw. He disallowed the claim for the death benefit, and awarded compensation on the claim for permanent partial disability for 103.5 weeks at $7.38 per week, less payments previously made. Upon a review before the whole commission, a final award was made for permanent partial disability in accordance with the award of Commissioner Shaw. Defendants appealed to the circuit court. From the judgment of the circuit court reversing the award of the commission, plaintiff has appealed to this court.

The reversal of the award of the commission was put on the ground that there was not sufficient competent evidence in the record to warrant the making of the award. The only question before the commission involving any substantial issue of fact was as to whether or not the deceased employee's injury resulted from an accident arising out of and in the course of his employment, and the only question involved here relates to the sufficiency of the evidence on that issue.

Deceased entered the employ of defendant Barr on May 7, 1928, under a verbal contract to sell ice cream cones for the defendant from a hand push cart, receiving 25 per cent. of all sales as a commission for making such sales. He worked continuously from May 7, 1928, to Sunday evening, June 17, 1928. He did the work of selling the ice cream from the push cart at various places, in St. Louis and St. Louis county, as agreed and directed, in a general way, by the employer. The push cart and ice cream supplies were furnished by the employer. He had a number of employees engaged in selling ice cream cones from push carts in St. Louis and St. Louis county. The employees would call at his place of business, get their carts and supplies, and go out, generally on foot, sell in their chosen or alloted territory, and return to the employer's place of business at the close of the day, where they left their carts and unsold supplies. There were no stated hours for work.

On the day that deceased was injured, he had been selling at Cliff Cave, south of the city of St. Louis, in St. Louis county, to which locality he and his cart were taken by the employer, or his driver, on the morning of that day, in an automobile truck owned and maintained by the employer, for the occasional purpose of transporting employees to and from various localities where their work required them to go.

About 7:30 or 8 p. m. of that day, the employer, at his place of business, 2333 Pine street, St. Louis, received a telephone call from the deceased in which he asked that the truck be sent for him and his cart. In response to this call, the employer sent his truck for the deceased.

Plaintiff testified: "I am the wife of Almore D. Nations, and was living with him as his wife on June 17, 1928. He was engaged at that time in the ice cream business. He was working for Wilbur L. Barr. My husband was engaged in selling ice cream for Wilbur L. Barr. He did not have a store, he had a cart. He carried his ice cream with the cart. He kept the cart at Mr. Barr's place of business. When he got up of a morning he called at Mr. Barr's for his ice cream, then started selling it. This cart was a hand cart. It was the property of Mr. Barr. He had a particular district in which to work. Mr. Barr determined the district, and told him where to go. Cliff Cave was his regular place on Saturdays and Sundays. He stated that he would go to Mr. Barr's place every morning and then would go with the truck and cart to the place where he was to work. At night, wherever he would happen to be, he would 'phone in to Mr. Barr, and he would call for him or send a driver for him with the truck. On June 17th, he was out on Broadway. I don't know the exact location. A Ford truck hit him when he was crossing the street. He had the cart at the time, had it there with him. He was bringing in his cart. After that Mr. Barr's truck driver brought him home. The truck driver went and picked him up at the place where he was hurt. He couldn't walk when he came home. He was in bed all the next day, and the following week. I took him to Barnes Hospital the following week. He was examined at Barnes Hospital and it was found that he had a broken hip. Before that Mr. Barr took him to the City Hospital. He was examined at the City Hospital and a piece of broken bone was found projecting. The piece of bone was taken out at the hospital and he was brought back home. He was at home until the following Sunday. When he came back home from the City Hospital his condition was just about the same as before. He couldn't walk. He didn't get no better. He continued worse. Then he was sent to Barnes Hospital. I did not see the accident. I do not know of my own personal knowledge what my husband was doing at the time he was hit."

It was admitted by the parties that compensation was paid to deceased by the Globe Indemnity Company at the rate of $7.38 per week, from the date of the accident to October 21, 1928. Deceased died January 5, 1929.

Defendant Barr testified: "Almore D. Nations worked for me from May 7th, to and including June 17, 1928. In peddling his ice cream he had his own jurisdiction. Had his own selection. He could select his route wherever he wanted to, with the exception that he was not permitted to infringe on the route of any other employee. I did not regularly haul him to the place where he was going to start work, and haul him back from there. I did this on occasions, at his request. I took him down to Cliff Cave several Sundays. I was not with Mr. Nations at the time he...