Newman v. Rice-Stix D.G. Co., No. 32294.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtCooley
Citation73 S.W.2d 264
Docket NumberNo. 32294.
Decision Date19 June 1934
PartiesLOUISE C. NEWMAN, ELIZABETH ANN NEWMAN and ROY WILLIAM NEWMAN v. RICE-STIX DRY GOODS COMPANY and CONSOLIDATED UNDERWRITERS, Appellants.
73 S.W.2d 264
LOUISE C. NEWMAN, ELIZABETH ANN NEWMAN and ROY WILLIAM NEWMAN
v.
RICE-STIX DRY GOODS COMPANY and CONSOLIDATED UNDERWRITERS, Appellants.
No. 32294.
Supreme Court of Missouri.
Division Two, June 19, 1934.

[73 S.W.2d 265]

Appeal from Moniteau Circuit Court.Hon. W.S. Stillwell, Judge.

AFFIRMED.

Otto & Potter and C.A. Powell for appellants.

(1) The burden is on the claimant to prove that the employer had notice or knowledge of the accident within thirty days after the accident and death of the employee, or to excuse such failure by affirmative proof that there was good cause for such failure or that the employer was not prejudiced thereby. Sec. 3336, R.S. 1929; Schrabauer v. Product Co., 25 S.W. (2d) 534; Buttinger v. Ely & Walker D.G. Co., 42 S.W. (2d) 982, reversed, State ex rel. Buttinger v. Haid, 51 S.W. (2d) 1008; Price v. K.C. Pub. Serv. Co., 42 S.W. (2d) 51; Sawtell v. Stern Brothers & Co., 44 S.W. (2d) 264; Ex parte Big Four Mining Co., 104 So. 764; Sloss-Sheffield Steele & Iron Co. v. Keefe, 113 So. 400; Andrews v. Butler Mfg. Co., 172 N.Y. Supp. 405; Murphy's Case, 115 N.E. 40; Keystone Lime Co. v. Kabat, 121 Atl. 484; Bodah v. Coeur D'Aleue Mill Co., 258 Pac. 1079; Wilson v. Standard Oil Co., 273 Pac. 758; Bloomfield v. November, 119 N.E. 705; Combes v. Geibel, 123 N.E. 452; Carbino v. DeGrasse Paper Co., 205 N.Y. Supp. 337; Ford Motor Co. v. Hunt, 293 Pac. 1038, 78 A.L.R. 1227; Railroad Co. v. Banks, 8 Pac. (2d) 17. (2) There is a presumption that the employer is prejudiced by not receiving notice of the accident within thirty days after it occurs. Oklahoma G. & E. Co. v. Thomas, 241 Pac. 820; Andrews v. Butler Mfg. Co., 172 N.Y. Supp. 405. (3) The requirement to give notice is jurisdictional and cannot be waived. Schrabauer v. Schneider Engraving Products Co., 25 S.W. (2d) 529; Walsh v. Waldron & Sons, 153 Atl. 298; In re Le Vangie, 117 N.E. 200; Taylor v. Am. Employers' Ins. Co., 3 Pac. (2d) 76; Petraska v. Natl. Acme Co., 113 Atl. 536; Higgins v. Heine Boiler Co., 41 S.W. (2d) 565; Wheeler v. Railroad Co., 42 S.W. (2d) 579; Price v. K.C. Pub. Serv. Co., 42 S.W. (2d) 51; Buttinger v. Ely & Walker D.G. Co., 42 S.W. (2d) 982; American C. & F. Co. v. Commission, 167 N.E. 83. (4) The expenses incurred by the deceased were usual and ordinary expenses such as are incurred by all traveling salesmen and were not "special" expenses, and, therefore, the amount paid him by the company and charged to his expense account constituted a part of his earnings, which earnings amounted to more than $3,600 per year. Sec. 3305(a), p. 383, Sess. Acts, 1931; Sec. 3320(g), R.S. 1929; Springfield Coal Mining Co. v. Commission, 126 N.E. 132; Abram Coal Co. v. Southern, 89 Law T. Rep. 103; Midland Railroad Co. v. Sharpe, App. Cas. 349. (5) When a traveling salesman who drives his own automobile has authority to go and come when he pleases and to choose his own route in going from one place to another, does not go over the logical route, the one usually and ordinarily traveled between these two points, and has an accident, the same does not arise out of and in the course of his employment. Sec. 3301, R.S. 1929; Sec. 3305(c), p. 383, Sess. Acts, 1931; Burgess v. Garvin, 272 S.W. 108; Fidelity & Cas. Co. v. K.C. Rys. Co., 231 S.W. 277; Guthrie v. Holmes, 198 S.W. 854; Brauch v. Skinner Bros. Mfg. Co., 51 S.W. (2d) 27; Wahlig v. Krenning-Schlapp Grocery Co., 29 S.W. (2d) 128. (6) The Workmen's Compensation Act applies to independent contractors only when they are engaged on or about the premises of the employer. Sec. 3308(a), R.S. 1929; Pruitt v. Harker, 43 S.W. (2d) 769; Jones v. Century Coal Co., 46 S.W. (2d) 196; Meyer v. Adams, 50 S.W. (2d) 744.

H.T. Williams and Bohling & Bohling for respondents.

(1) The question of giving notice to the employer of the fatal injury is not now in the case for review by this court, because: (a) The referee found that the employer had notice. (b) It is conclusively presumed that the referee's finding is based on evidence or admission. In any event, it being a finding of fact is not reviewable under the statute. (c) Appellant made no objection on that ground at the trial, nor at the hearing before the full commission, nor in the circuit court. (d) Appellants tried the case in all respects as if notice had been given as found by the referee. Appellant's conduct supports the referee's finding. (e) Appellants did not plead lack of notice. (f) Every reasonable inference from the whole record supports the referee's finding that the employer had actual written notice of the injury. (g) There is not the remotest showing by inference, suspicion or otherwise that appellants have been prejudiced on the question of notice. (h) We must conclude that notice was actually given because all purposes of actual notice had been served and were so treated by appellants throughout the proceedings. State ex rel. Buttiger v. Haid, 51 S.W. (2d) 1008. The following case directly in point is conclusive against appellants on the question of notice: Wall v. Lemons, 51 S.W. (2d) 194, TRIMBLE, J., says at page 199: "The commission was eminently justified in finding that notice was given; but, if not, notice was waived when no point was made for want of it before the commission. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W. (2d) 153, 155. In addition to this, it would seem to be clear that, where no issue on the question of notice or of any other matter was raised before the commission, no such issue can be raised before us on appeal. The judgment should be, and is, affirmed." The question of notice is one of fact, its determination by referee, by the commission is not reviewable. Schrauber v. Schneider, 224 Mo. App. 304, 25 S.W. (2d) 529. Findings of fact by the commission have the effect of a verdict by jury and are not reviewable. Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601; Insurance Co. v. Davis, 42 S.W. (2d) 945; Morris v. Dexter, 40 S.W. (2d) 750; Payne v. Sullivan, 36 S.W. (2d) 127; Bricker v. Gillie, 35 S.W. (2d) 662. (2) Newman's traveling expenses, paid weekly by his employer, are not to be charged against his wife and children as earnings for purpose of defeating their claim under the Workmen's Compensation Law. Sec. 3319(b), R.S. 1929; Sec. 3320(g), R.S. 1929, contains the following explicit language: "In computing the annual earnings ... there shall not be included ... any sums the employer paid to the employee to cover any special expenses entailed on him by the nature of the employment;" which certainly eliminates traveling expenses of a traveling salesman from consideration as part of earnings. Clingan v. Carthage Ice & Cold Storage Co., 25 S.W. (2d) 1084. Where father and mother were partially dependent on son's wages which were by him turned over to mother and used in support of whole family, the value of his board and lodging are not to be deducted from amount of his earnings in making the award. The principle is similar to the statutory provision above cited. Wahlig v. Krenning-Schlapp Grocer Co., 29 S.W. (2d) 128. Operating expenses of automobile of traveling salesman were not by the commission counted as part of earnings, and the finding was sustained by the Supreme Court. Some valuable discussion as to what are earnings is found in: L.R.A. 1916a, 149; L.R.A. 1917d, 164; 28 R.C.L., p. 821, par. 108. (3) Newman was killed "by accident arising out of and in the course of his employment." Sec. 3301, R.S. 1929. The finding by the commission, first, as to course of employment, in these words: "I find from the evidence that the employee sustained an injury in an accident arising out of and in the course of his employment on May 28, 1931, and that death resulted from such injury," is a finding of fact and not a conclusion of law reviewable by either the circuit court or Supreme Court. Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601. Opinion by RAGLAND: Note this language of Judge RAGLAND in the opinion, page 604, 40 S.W. (2d), par. (2-3): "That there was an accident as defined by the act and that it arose out of and in the course of the employment, were findings of fact and not conclusions of law; they were ultimate facts and with other constitutive facts found or admitted afforded a sufficient basis under Section 3 of the act (Sec. 3301, R.S. 1929) for an award of compensation." Even though that fact was legally open to review by this court and had not the binding force in all subsequent proceedings of a special verdict, the uncontradicted evidence is so overwhelmingly to the effect that the accident arose out of and in the course of employment as leaves no doubt whatever of the correctness of the finding by the referee and its subsequent approval or review by the whole commission. Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 605; Brauch v. Skinner Bros. Mfg. Co., 51 S.W. (2d) 28; Sawtell v. Stern Bros. & Co., 44 S.W. (2d) 265. Newman died from accident arising out of and in the course of his employment, and where his services required his presence as a part of such services. Sec. 3301, R.S. 1929; Sec. 3305, Id.; Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601. Traveling salesman changing tire of car in garage at his own home preparatory to going out on employer's business overcome by carbon monoxide gas from car caused his death. Held, in course of employment. Sylcox v. Natl. Lead Co., 38 S.W. (2d) 497; Traut v. Ry. Co., 39 S.W. (2d) 424; Gunter v. Wheeler, 36 S.W. (2d) 325; Parish v. Armour, 158 S.E. 188, 200 N.C. 654; Midland Casualty Co. v. Ling, 213 N.W. 292, 243 Pac. 1152; Wahlig v. Krenning-Schlapp Grocery Co., 29 S.W. (2d) 128.

COOLEY, C.


This case, which comes to the writer on reassignment, originated before the Workmen's Compensation Commission. Plaintiffs are the widow and the two minor children of Roy M. Newman, deceased, who was killed in an automobile collision May 28, 1931. At and prior to the time of his death Newman was in the employ...

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13 practice notes
  • DeRousse v. PPG Industries, Inc., No. 61503
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1980
    ...and its own liability. Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657, 662(1-4); Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 267(3-5); McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911, 913(4); Lawson v. Vendo Co., 353 S.W.2d (113) l.c. 116(1). It is to be p......
  • Leingang v. Hardware Co., No. 29615.
    • United States
    • United States State Supreme Court of Missouri
    • June 19, 1934
    ...the defendant and will best serve the ends of justice. There is earnest contention by appellant that the verdict is excessive aside from 73 S.W.2d 264 the question of lost earnings. While on the whole evidence, which we have sketched only from the standpoint favorable to plaintiff, the verd......
  • Thomas v. Griffin Wheel Co., Docket No. 1450
    • United States
    • Court of Appeal of Michigan (US)
    • October 27, 1967
    ...(1917), 197 Mich. 334, 340, 163 N.W. 897. 14 See, for example, statutes quoted in Newman v. Rice-Stix Dry Goods Co. (1934), 335 Mo. 572, 73 S.W.2d 264, 266: 'No proceedings for compensation under this chapter shall be maintained unless written notice * * * shall have been given to the emplo......
  • Spradling v. International Shoe Co., No. 43952
    • United States
    • United States State Supreme Court of Missouri
    • July 12, 1954
    ...605; Beem v. H. D. Lee Merc. Co., 337 Mo. 114, 85 S.W.2d 441, 442[1, 4, 5], 100 A.L.R. 1044; Newman v. Rice-Stix D. G. Co., 335 Mo. 572, 73 S.W.2d 264, 271, 94 A.L.R. 751; Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880, 883; Thornton v. Hartford Acc. & Indem. Co., 1......
  • Request a trial to view additional results
13 cases
  • DeRousse v. PPG Industries, Inc., No. 61503
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1980
    ...and its own liability. Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657, 662(1-4); Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 267(3-5); McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911, 913(4); Lawson v. Vendo Co., 353 S.W.2d (113) l.c. 116(1). It is to be p......
  • Leingang v. Hardware Co., No. 29615.
    • United States
    • United States State Supreme Court of Missouri
    • June 19, 1934
    ...the defendant and will best serve the ends of justice. There is earnest contention by appellant that the verdict is excessive aside from 73 S.W.2d 264 the question of lost earnings. While on the whole evidence, which we have sketched only from the standpoint favorable to plaintiff, the verd......
  • Thomas v. Griffin Wheel Co., Docket No. 1450
    • United States
    • Court of Appeal of Michigan (US)
    • October 27, 1967
    ...(1917), 197 Mich. 334, 340, 163 N.W. 897. 14 See, for example, statutes quoted in Newman v. Rice-Stix Dry Goods Co. (1934), 335 Mo. 572, 73 S.W.2d 264, 266: 'No proceedings for compensation under this chapter shall be maintained unless written notice * * * shall have been given to the emplo......
  • Spradling v. International Shoe Co., No. 43952
    • United States
    • United States State Supreme Court of Missouri
    • July 12, 1954
    ...605; Beem v. H. D. Lee Merc. Co., 337 Mo. 114, 85 S.W.2d 441, 442[1, 4, 5], 100 A.L.R. 1044; Newman v. Rice-Stix D. G. Co., 335 Mo. 572, 73 S.W.2d 264, 271, 94 A.L.R. 751; Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880, 883; Thornton v. Hartford Acc. & Indem. Co., 1......
  • Request a trial to view additional results

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