O'Neil v. Fred Evens Motor Sales Co.

• Decision Date: 07 April 1942
• Docket Number: No. 25996.,25996.
• Citation: 160 S.W.2d 775
• Parties: O'NEIL v. FRED EVENS MOTOR SALES CO. et al.
• Court: Missouri Court of Appeals

160 S.W.2d 775

O'NEIL v.FRED EVENS MOTOR SALES CO. et al.

No. 25996.

St. Louis Court of Appeals. Missouri.

April 7, 1942.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Albert L. O'Neil, employee, opposed by the Fred Evens Motor Sales Company, employer, and the Bankers Indemnity Insurance Company, insurer.From a judgment reversing an award of the Workmen's Compensation Commission denying compensation, the employer and insurer appeal.

Reversed and remanded with directions.

E. C. Friedewald and Lee M. Carter, both of St. Louis, for appellant.

Barak T. Mattingly, Floyd Aker, and Fred Berthold, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

Workmen's compensation case.The finding and award of the commission was that the employee had an accident at the time and place stated in his claim and that he was injured thereby, but that said accident did not arise out of his employment.The circuit court on appeal reversed the award of the commission, finding that there was not sufficient competent evidence in the record to warrant the making of the finding and award of the Commission.The employer and insurer appeal.

Albert O'Neil was an automobile salesman employed from and after February 1, 1938, by Fred Evens Motor Sales Company whose place of business is located in Clayton.He sold new cars and used cars and helped generally in the operation of the concern; he went wherever and whenever he pleased, except that he had to open the place in the morning between 6 and 7 o'clock, and he was supposed to go to work as a salesman at 8:30 in the morning and work until 6 o'clock in the evening, and then return and close the office, sometimes as late as 10 o'clock.

The accident occurred on October 20, 1938, but in as much as O'Neil's actions on October 19th lead up to and connect with his actions on the 20th, we will begin with that date.On October 19th, he arrived at the Fred Evens Company about 6 o'clock in the morning and stayed there until 10 or 10:30.Where he spent the whole of his time during the day is not clearly shown, and is immaterial, sufficient to say that in the afternoon he first drove south on Laclede Station Road, and he thinks he stopped to see a man named Johannes on Brentwood Boulevard, and then continued south to Highway 66 on which highway he proceeded west to Coyne Brothers Filling Station, and from Coyne's he continued west on 66 to Eureka, then back on Highway 66 from which he turned north into Valley Park and thence to the residence of Horace Milliken near Valley Park for the purpose of trying to sell Milliken a new car.Not finding Milliken at home he returned to Highway 66 and to a tavern known as Huskisson's where he spent two or three hours during which time he and the bartender "shook" dice for the drinks and he won about 15 drinks and had them put in a bottle for future use, and he took three or four drinks of Scotch whiskey and one more during the evening.Digressing for the moment from plaintiff's peregrinations, to say that claimant was known to be a man who liked to drink and was known as a man who couldn't take over two or three drinks without going to sleep; and for some time prior to this trip he had not drunk intoxicating liquor having been promised a bonus by his employer if he would not drink.Continuing, about 10 o'clock that night claimant left Huskisson's to return home, but instead of returning by way of Highway 66 as he had come, he started on the shorter and more direct route through Kirkwood on Marshall or Big Bend road.He got no further than Kirkwood where he was stopped by the police and taken to the police station and held for an hour or an hour and one-half, charged with careless driving and being unable to operate his car, and during which time he telephoned to a friend in Kirkwood, who sent his car to the police station and had his chauffeur take claimant to the Fred Evens Motor Company in Clayton leaving claimant's car in Kirkwood.Claimant thus arrived at the Evens Motor Company about 1:30 or 2 o'clock in the morning, and slept in a motor car the balance of the night, and got up about 6 o'clock on the morning of the 20th.

On October 20th, after eating breakfast, plaintiff took a street car for Kirkwood and arrived there about 7:30 in the morning.He then took his automobile and returned to Milliken's, and again found Milliken away from home.Milliken's home is about two blocks south of Big Bend road in Valley Park, and Big Bend road is the most direct route from Valley Park to Clayton.O'Neil waited for Milliken to return, and while so waiting he drove down to Highway 66 and to the west on Highway 66 intending to go to Eureka, but changed his mind and returned to Milliken's.Milliken returned home about 11 o'clock, and O'Neil spent about an hour with him trying to interest him in buying a new car and in adjusting a window of Milliken's car, and during which time O'Neil gave Milliken a check for $25 and took in return a check from Milliken for $25, and then he drove south to Highway 66 and to Huskisson's Tavern, where he got Milliken's check cashed.While at Huskisson's he again started to Eureka and after driving some distance returned.He spent about two hours at Huskisson's, during which time he was shaking the dice and he had three or four drinks of Scotch whiskey.While at Huskisson's he claims to have tried to interest a young lady waitress in the purchase of the car he was driving, which car had been left with his employer for sale.After leaving Huskisson's Tavern he stopped for about 15 minutes at Kesslers' Tavern on Highway 66 and located at the junction of the road that goes north to Valley Park.

After leaving Kesslers' instead of going to Valley Park and turning east on Big Bend road, he said he went east on Highway 66 intending to drive to Laclede Station road and then north to Brentwood.O'Neil said that when he left Huskisson's he intended to stop on Brentwood boulevard to see Johannes.He had sold Johannes a car several months before, but what business he had with Johannes on this occasion, if any, does not appear, and besides he thinks he had seen Johannes on the day before.There was evidence that to go to Johannes place on Brentwood boulevard from Milliken's, traveling by way of Big Bend road, the distance is 10.6 miles, whereas from Milliken's to Johannes place, traveling by way of Highway 66 and Laclede Station road, is 15.2 miles.At the hearing claimant testified that when about a mile east of Lindberg Drive he threw a cigarette out the window and he thought it blew back in the car, and he pulled up on the shoulder of the highway and stopped; that his car was in high gear and his feet were on the clutch and the brake; that he looked and couldn't see the cigarette and he opened the left door of the car; that his foot slipped off the clutch, the car jerked and he fell out the left side and was rendered unconscious and when he gained conciousness was in the St. Louis County Hospital.

Notwithstanding this testimony of claimant at the hearing, on October 22d the insurers' representative, Robert Bransford, visited him at the hospital and took a statement from him which was taken down in shorthand and afterwards transcribed and was read in evidence at the hearing, and in which statement claimant said that when the accident happened it was on Big Bend road and not on Highway 66, and he further said that he did not remember anything after he left Milliken's; that he did not know where he was found; that he had no clear recollection of anything that happened after he left Milliken's until he woke up in the hospital about 6:30.

He was taken home from the hospital and the next morning called his family doctor, Dr. E. H. Johnson, who had him taken to the Deaconess Hospital.Dr. Johnson testified that at that time claimant was unable to explain to him what had happened.A hospital record was read to Dr. Johnson which stated "Patient was in Valley Park, Missouri, 10-20, with his automobile.He intended to drive to St. Louis.The next thing he remembers being in St. Louis County Hospital with above complaint."The doctor said that is about what he got from him.

Dr. Eugene Pitts, who was an interne at the Deaconess Hospital to which claimant was taken on October 21st, stated, "I remember, aside from the history, that he said he was unable to give an accurate account of what had happened to him and that all he did remember was that he was in Valley Park, Missouri, on the 20th of October, with his automobile; he intended to drive back to St. Louis, he said, and the next thing he remembered was being in St Louis County Hospital with the complaint that he had exquisite tenderness in the back of his neck, particularly on standing.He did not offer an explanation as to why he didn't remember it."

Dr. E. C. Funsch saw plaintiff on October 28th at the Deaconess Hospital; he said that he talked with him; that he showed no evidence of any mental obscurity; that he would say he was rational, conscious, rational and co-operative; that he made an attempt to get a history of when this occurred and what he was doing at the time; that he said on October 20, 1938, he had been in Valley Park, Missouri, and he intended to drive his automobile back to St. Louis and the next thing he remembered he was in the St. Louis County Hospital.

John Hertel testified that he was the first man at the scene of the accident; that he was driving east on Highway 66 between 2 and 3 o'clock in the afternoon, and he saw the car on the shoulder and O'Neil lying with...