Sawtell v. Stern Bros. & Co.

• Decision Date: 07 December 1931
• Docket Number: No. 17408.,17408.
• Citation: 44 S.W.2d 264
• Court: Missouri Court of Appeals
• Parties: JAMES H. SAWTELL, RESPONDENT, v. STERN BROTHERS & CO., EMPLOYER; AETNA LIFE INSURANCE COMPANY, APPELLANTS.

44 S.W.2d 264

JAMES H. SAWTELL, RESPONDENT, v. STERN BROTHERS & CO., EMPLOYER; AETNA LIFE INSURANCE COMPANY, APPELLANTS.

No. 17408.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Clarence A. Burney, Judge.

AFFIRMED.

Ryland, Stinson, Mag & Thomson and Robert E. Rosenwald for respondent.

A.L. Plummer for appellant.

BOYER, C.

This case arose before the Workmen's Compensation Commission upon the claim of Sawtell, employee, against Stern Brothers & Company, employer, and Aetna Life Insurance Company, the insurer. The full commission, on review of the award of no compensation by one of the commissioners, found in favor of the employer and insurer and against the employee and awarded no compensation. On appeal to the circuit court of Jackson county at Kansas City, said court reversed the award and remanded the cause to the commission with instructions to determine the amount of the compensation to which claimant is entitled under the law. The case is here on appeal from said judgment.

In the language of counsel for the employer and the insurer. "the contention of the appellants is, and has been throughout the proceedings of this case that respondent's accident resulting in personal injuries did not arise out of and in the course of his employment as provided by the Missouri Workmen's Compensation Law, but occurred during a period of time in which he had temporarily abandoned his employment ..." The respondent contends to the contrary. The question thus raised is the decisive one in the case as shown by the briefs and arguments.

The answer to the claim for compensation filed by the employer and insurer expressly denies that the injuries to the employee resulted from an accident arising out of and in the course of his employment, and says "on the contrary defendants allege that at the time of the accident said James H. Sawtell was not acting in the course of his employment, he having left his employment for the purpose of visiting his relatives and was returning from his relatives' house at the time the accident occurred and consequently was engaged on his own personal affairs and not on the business of his employer at the time of the accident." All other facts necessary to support the claim are admitted in the answer or upon the hearing before the commissioner.

The case was submitted to the commissioner upon the admissions so made and upon the oral testimony of claimant alone. There was no cross-examination. From the admissions and the testimony the following undisputed facts appear. On the date of the injury, November 30, 1929, James H. Sawtell was an employee of Stern Brothers & Company of Kansas City, Missouri. His work was that of a bond salesman; he had been with the company since 1917. Sawtell lived at Topeka, Kansas, where he maintained a branch office and from which place he would go out over an unrestricted territory in a quest for purchasers of bonds offered for sale by his employer. He had friends, acquaintances, and relatives in Kansas City, Missouri, and pursued the business of his employer at that place and elsewhere. He was acquainted with a Mrs. Wright who lived in Kansas City with her husband, and previous to the date of the injury he had met her at Emporia. Kansas, and out of a conversation between them she became interested in the purchase of certain bonds. Subsequently there was correspondence which led to an arrangement for a meeting between the parties at the office of Stern Brothers & Company in Kansas City. In pursuance thereof, claimant and his wife on the 30th day of November, 1929, came to Kansas City, Missouri, and met Mr. and Mrs. Wright at the office of Stern Brothers & Company for the purpose of discussing the sale of bonds. These four people lunched together that day and the subject of bonds was mentioned at intervals. After lunch the wives of Wright and Sawtell desired to drive around town to see the Christmas decorations and Mr. Wright and Sawtell went to the home of the Wrights where for some time they discussed the bonds in question. It developed that the funds with which the bonds were to be purchased belonged to Mrs. Wright and her husband desired that she hear the discussion. About 4:30 P.M. the men agreed that a further discussion about the sale of the bonds could he resumed when Mrs. Wright returned. It was not known when she would return, but claimant says that he thought perhaps she would be back about five o'clock. While waiting for the return of Mrs. Wright claimant went to visit his sister and niece who lived in the immediate vicinity and about four and one-half blocks from the Wright residence. The home of the Wrights was "right off Brookside on 56th street" and the home of claimant's sister was "two blocks and a half south and two blocks east." About 5:30 P.M., while claimant was on the return journey from his sister's house to the Wright home, and at 58th and Brookside a little more than two blocks from the Wright home he was struck down by an automobile in charge of a hit-and-run driver, rendered unconscious and otherwise injured. A part of claimant's testimony is shown by the following questions and answers:

"Q. At the time you were injured you were returning to the home of the Wrights? A. Yes.

"Q. For what purpose? A. For the purpose of further discussion of the bond sale which was afterwards consummated.

"Q. At the time you left the home of the Wrights to go to the home of your niece. Mrs. Wright had not yet returned to the house? A. No. no.

"Q. And when you left the Wright home, you and Mr. Wright agreed that the further discussion about the sale of the bonds could be resumed when Mrs. Wright returned? A. Yes."

Sawtell was receiving from his employer as compensation for his services a fixed salary of $250 a month. In pursuit of claimant's employment he was much in the streets and walking thereon. He testified that at the time he was injured he was engaged in walking on the street intending to further the sale of the bonds which had been discussed. It was his habit and custom to sell and attempt to sell bonds in Kansas City.

In the original award by the commissioner who heard the evidence, it is stated that the finding was in favor of the employer and insurer and against the employee and awarded no compensation "for the reason the employee has failed to prove that the accident arose out of and in the course of his employment." The final award on review affirms the previous award and recites that "attached hereto are the findings of fact and rulings of law made in connection herewith:" The findings of fact and rulings of law referred to are set out under the caption "Statement and Rulings of Law," the first part of which is the following:

"On review award dated November 12, 1930, is hereby modified with the following statement of facts and rulings of law. Claimant was a bond salesman with headquarters at Topeka, Kansas. He had no special territory and could sell any place he could find a customer. On or about November 30, 1929, he came to Kansas City, Missouri, for the purpose of selling bonds to a Mr. and Mrs. Wright. Claimant and his wife and Mr. and Mrs. Wright had lunch together downtown in Kansas City and after lunch Mrs. Wright and Mrs. Sawtell wished to drive around town to see the Christmas decorations and the claimant and Mr. Wright went on out to Mr. Wright's home. They then discussed the matter of bonds for some time, but as the bonds were to be bought with Mrs. Wright's money, Mr. Wright wanted her to hear the discussion. While waiting for them to come the claimant walked about four and one-half blocks to his niece's and sister's for a visit. When returning from their home to Mr. Wright's to finish the discussion in regard to the sale of bonds he was struck by a car and injured."

The remainder of the designated "Statement and Rulings of Law" is an argument in support of the "opinion" of the commission that the accident did not arise out of and in the course of the employment.

The circuit court, according to its order and judgment found: 1. That the facts found by the commission do not support said award, and 2. That there was not sufficient competent evidence in the record to warrant the making of said award, and 3. That the claimant sustained personal injuries arising out of and in the course of his employment. The court then ordered and adjudged that the award of the commission be reversed and the cause remanded as stated above.

OPINION.

The contending parties agree that the facts are undisputed, and that in such situation the determination of this appeal involves merely a question of law and not a question of fact in determining whether the accident did or did not arise out of and in the course of the employment. It is in effect agreed that the finding of the commission that the accident did not arise out of and in the course of the employment is not such a finding of fact as to be binding and conclusive on the appellate court in this case. Such being the adopted theory we need not give heed to the technical distinction between findings of fact and conclusions of law. However, it has been recently held by the Supreme Court in Leilich v. Chevrolet Motor Company, 40 S.W. (2d) 601, 604:

"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 act and not conclusions of law; they were ultimate facts, and, with the other constitutive facts found or admitted, afforded a sufficient basis under section 3 of the act (section 3301. R.S. 1929) for an award of compensation."

In the foregoing case it is pointed out that the commission's findings of fact precluded the weighing of evidence on review; that the findings are in the nature of a special verdict and are binding and conclusive provided only that they are supported by a sufficient amount of competent evidence. In many cases this may be of...