Retail Credit Co. v. Coleman

• Decision Date: 16 April 1956
• Docket Number: No. 40146,40146
• Citation: 86 So.2d 666,227 Miss. 791
• Parties: RETAIL CREDIT COMPANY, and Travelers Insurance Company v. Mrs. Leland M. COLEMAN and Michael L. Coleman.
• Court: Mississippi Supreme Court

Page 666

86 So.2d 666

227 Miss. 791

RETAIL CREDIT COMPANY, and Travelers Insurance Company v. Mrs. Leland M. COLEMAN and Michael L. Coleman.

No. 40146.

Supreme Court of Mississippi.

April 16, 1956.

Young & Daniel, Jackson, for appellants.

H. T. Carter and H. K. Van Every, Columbus, for appellees.

ETHRIDGE, Justice.

In this workmen's compensation case the question is whether the great weight of the evidence shows that the injury and death of the employee, Leland M. Coleman, arose out of and in the course of his employment. More particularly, the issue is whether there was substantial evidence to support the finding of the attorney-referee and the Workmen's Compensation Commission that Coleman's death did not arise out of and in the course of his employment. The Circuit Court of Attala County reversed the commission and awarded compensation. We affirm that judgment because there is no substantial evidence in the record to support the commission's order denying an award. The appellants are the employer, Retail Credit Company, Inc., and its insurance carrier, and the appellees-claimants are the widow and minor son of the deceased employee.

Coleman, a young man recently out of college, was employed by appellant Retail Credit Company as a field investigator of insurance claims referred to the company by insurance carriers. The company's home office is in Atlanta, Georgia, but its work in Mississippi is directed from its headquarters in Jackson. The state is divided into several districts for field investigation purposes, with a resident field investigator assigned to each district. When a customer of the company desires an investigation to be conducted, the request, on a form provided, is directed to the nearest field investigator, who makes an investigation, obtains the information, and types up a report in duplicate. The original is sent to the company's client and a copy, along with the investigator's expense account, is mailed to the Jackson office.

Coleman was field investigator in the Kosciusko district. The company paid him a monthly salary of $270 plus 8cents per mile for the use of his car, when it was used in the company's business. Coleman's territory contained two 'legs' or divisions: In the eastern half, there were Louisville, Ackerman, McCool and Ethel; in the western half, Durant, Lexington, Tchula, Cruger and Pickens. Ordinarily Coleman would work one-half of his territory, return to his headquarters in Kosciusko, and the next day type up the reports on those investigations. However, he had a large area of discretion as to his working hours and the methods of conducting his investigations. Durant was in his territory.

On Wednesday, April 28, 1954, Coleman had made some investigations in Durant and perhaps other parts of his western territory, including an investigation of the Clinton D. Love matter. Love had been shot in an altercation with another man, and apparently some insurer desired to obtain a factual report on the incident. On Thursday, April 29, Coleman was in Kosciusko typing reports on the investigations he had made the previous day. The company's state manager from Jackson, John W. Miller, had lunch with him that day in Kosciusko. Miller testified that Coleman told him that he had been to Durant on Wednesday, that he had finished the western leg of his territory, and that he was typing his work on that day, Thursday.

Miller's visit to Kosciusko is accounted for by the fact that on April 10 Coleman had resigned his job because of ill health. He was afflicted with a kidney disease. Miller accepted Coleman's offer to continue on the job until May 1, and apparently Miller went to Kosciusko on Thursday, April 29, to discuss the situation with Coleman and to decide whether to close up the Kosciusko station. In the meantime, on Wednesday April 28, Coleman's wife and eleven-month old son had moved to Starkville to live with her widowed mother. Coleman planned to join his family in Starkville on Saturday, May 1.

On Friday, April 30, Coleman made some investigations in Louisville in eastern part of his territory, and returned to Kosciusko around four o'clock that afternoon. His wife testified that around 4:00 p. m. he telephoned her in Starkville; that she thought he was in Kosciusko, and he told her he had some more work to finish on claim cases; that he wanted to come to Starkville on Friday night, but because of these unfinished cases he would have to complete them before he could get away. He intended to come to Starkville on May 1. She said that Coleman advised her on the telephone that he had been to Louisville, and he was going to Durant, since he had 'some further information he had to get on some claims so he could close out his office.'

Ray T. Stennett, Secretary of the Kosciusko Chamber of Commerce, had an office across the hall from Coleman. He stated that around four o'clock Friday afternoon he had a brief conversation with Coleman, who told him that he was leaving town the next day; and that he had some errands to run, some bills to pay, and 'he was trying to wind up his work, so he would see me Saturday morning.' On previous occasions Coleman told him he had a lot of work which he had to finish up before he left. Coleman did quite a bit of night work.

Mrs. Mary Emily Read, Medical Librarian of the Community Hospital in Durant, testified unequivocally that between four and five o'clock Friday afternoon Coleman came to her office to inquire about Clinton D. Love, who had been in the hospital only as an emergency out-patient for about two hours, until he was sent by ambulance to a hospital in Jackson. She gave him the information available. Mrs. Read said that she remembered very clearly that this was on the afternoon of Friday, April 30, because she had an appointment at a beauty shop in Durant at five o'clock and she was afraid he might cause her to be late for it. She also placed Friday afternoon as the time because of the next morning, Saturday, she was told about the automobile accident the preceding night, and Wigley, the injured occupant of the other car, was a patient at her hospital. The Friday afternoon date of Mrs. Read's appointment at the beauty shop was confirmed by testimony of Mrs. Ashley, operator of the beauty shop, who said her records reflected the appointment at that time. Mrs. Read was positive that Coleman had visited her in her office in Durant on Friday afternoon, April 30, before five o'clock, and her testimony is particularly convincing in that she associate it with other events of that day and the day following. So the evidence places Coleman in Durant on company business Friday afternoon. It is not revealed as to what he did between 5:00 and 9:30 p. m., but presumably he was investigating either the Love or other matters in Durant.

Between 9:30 and 10:00 p. m. that evening Coleman went to the 51 Grill or Club in Durant and ate a sandwich. Mrs. Marie Morgan, who works there, said that Coleman had come in for food once or twice a week over a period of time; that he told her it was his last day to work, 'he had come to Durant to finish some kind of business and he was leaving next morning'; and he shook hands with her and told her that he was glad to have met her. Coleman stayed in the Grill until about 12:00 midnight. He ate, visited at a table with two former college classmates, and drank two cans of beer. He left when the place closed up. He got in his car and drove directly upon the highway to Kosciusko. While driving on this direct route back to his home, his car collided with that of another, and he was killed.

Appellants contend that the commission was warranted in disregarding all of this testimony because it is contradicted by an...