Scharlott v. New Empire Bottling Co.

• Decision Date: 11 February 1946
• Docket Number: 39469
• Citation: 192 S.W.2d 853,354 Mo. 971
• Parties: Clara Scharlott, Widow of Alfred V. Scharlott, Deceased, Employee, v. New Empire Bottling Company, Employer, and the Ocean Accident and Guarantee Corporation, Insurer, Appellants
• Court: Missouri Supreme Court

192 S.W.2d 853

354 Mo. 971

Clara Scharlott, Widow of Alfred V. Scharlott, Deceased, Employee, v. New Empire Bottling Company, Employer, and the Ocean Accident and Guarantee Corporation, Insurer, Appellants

No. 39469

Supreme Court of Missouri

February 11, 1946

Rehearing Denied March 11, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

Joseph N. Hassett and Ernest E. Baker for appellants.

The death of Alfred V. Scharlott did not give rise to the right to compensation under the Missouri Workmen's Compensation Act, because the injury and death of the said Alfred V Scharlott did not arise out of and in the course of his employment. Ricketts v. Story Laundry & Dry Cleaning Co., 155 S.W.2d 539; Smith v. Seaman & Schuske Metal Works Co., 127 S.W.2d 435; Cassidy v. Eternit, Inc., 326 Mo. 342, 32 S.W.2d 75; Kasper v. Liberty Foundry Co., 54 S.W.2d 1002; Miliata v. Jack Rabbit Candy Co., 54 S.W.2d 779; Probst v. St. Louis Basket & Box Co., 52 S.W.2d 501; Bise v. Tarlton, 35 S.W.2d 993; Smith v. Levis-Zukoski Merc. Co., 223 Mo.App. 743, 14 S.W.2d 470; Morris & Co. v. Industrial Comm., 128 N.E. 727.

Hay & Flanagan and H. O. Piening for respondents.

(1) The Workmen's Compensation Act should be liberally construed as to persons to be benefited and any doubt as to right of compensation should be resolved in claimant's favor. Sec. 3764, R.S. 1939; Howes v. Stark Brothers Nurseries & Orchard Co., 223 Mo.App. 793, 22 S.W.2d 839; Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224; Pruit v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130; Murphy v. Wells-Lamont-Smith, 155 S.W.2d 284; Baird v. Gleaner Harvester Corp., 172 S.W.2d 892. (2) The deceased sustained an accidental injury, resulting in death, which arose out of and in the course of his employment. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Ransdell v. International Shoe Co., 329 Mo. 47, 44 S.W.2d 1; Kasper v. Liberty Foundry Co., 54 S.W.2d 1002; Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Shroyer v. Missouri Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713; Phillips v. Air Reduction Sales Co., 85 S.W.2d 551; L.B. Price Mercantile Co. v. Industrial Co., 30 P.2d 491, 43 Ariz. 257; Travelers Ins. Co. v. Burden, 94 F.2d 880; Alabama Concrete Pipe Co. v. Beery, 226 Ala. 204, 146 So. 271; Triola v. Western Union Tel. Co., 25 S.W.2d 518; Employers Liability Assur. Corp. v. Industrial Accident Comm., 177 P. 171, 36 Cal.App. 568; Sec. 3691, R.S. 1939. (3) There was substantial evidence before the Workmen's Compensation Commission in support of its finding and award and the appellate courts must accept commission's fact finding. Weaver v. Norvich Pharmacal Co., 347 Mo. 995, 149 S.W.2d 846; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554; Palm v. Southwest Missouri Wholesale Liquor Co., 176 S.W.2d 528.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

The following is a statement of this case as found in appellants' brief:

"This appeal grows out of a claim for compensation filed before the Missouri Workmen's Compensation Commission by Clara Scharlott, widow of Alfred V. Scharlott, deceased, seeking an award of compensation on account of the death of her husband. The Missouri Workmen's Compensation Commission made an award in the sum of $ 8,350.00, and on appeal to the Circuit Court of the City of St. Louis, the award of the Missouri Workmen's Compensation Commission was affirmed.

"Claimant's husband, Alfred V. Scharlott, was employed by the employer as a driver-salesman, delivering and selling cases of soda water to retail trade at the time of his injury and death, on July 16th, 1943. The driver-salesmen were permitted by the employer to obtain the services of a helper on their trucks if they so desired. These helpers were paid by the driver-salesmen and were under the control of the driver-salesmen, and were not paid by the employer and were not under the control of the employer.

"On the date in question, Alfred V. Scharlott had obtained the services of Daniel Stevens as helper on his truck. On that day David Lee Brooks was employed by the employer, washing bottles and cleaning up in the bottling room of their plant. Daniel Stevens was fifteen years of age, and David Lee Brooks was thirteen years of age, although he had represented to the employer that he was fourteen years of age.

"It was a custom that the last driver reporting back to the employer's place of business, after finishing work for the day, would assist in placing the trucks in the garage. On July 16th, 1943, Alfred V. Scharlott was the last driver-salesman to report back after finishing his day's work. He drove his truck into the Bottling Department and went into the office to check in his day's receipts. There were two of the employer's trucks in the yard which had to be put away for the night. David Lee Brooks got into the cab and sat down in one of these trucks, and Alfred V. Scharlott and Daniel Stevens came out of the Bottling Room and walked towards the truck in which David Lee Brooks was sitting. Daniel Stevens got into the righthand side of the cab of the truck and sat on the seat, and David Lee Brooks was sitting to his left in the middle of the seat, and Alfred V. Scharlott got onto the running board on the left-hand side of the truck. Mr. Scharlott then told David Lee Brooks to get over under the steering wheel and drive the truck into the garage. The Brooks boy told Mr. Scharlott that he did not know how to drive, and informed Mr. Scharlott that he was afraid to drive the truck, and Mr. Scharlott kept telling him what to do, and told him to turn on the gas and put his foot on some of the pedals, and the Brooks boy kept telling him that he was afraid to try to drive the truck into the garage. The Stevens boy put his foot on the starter and the truck started toward. Before the truck started moving it was about twenty feet from the garage and facing towards the garage. When the truck was about seven or eight feet from the door of the garage, the Stevens boy testified he could see it was going to hit, so he jumped out of the truck cab and ran towards the office. The truck continued to move towards the garage and pinned Alfred V. Scharlott against the wall of the garage, causing him to sustain injuries from which he later died. There was nothing that would have prevented Mr. Scharlott from stepping off the running board before the truck pinned him against the wall of the garage.

"Mr. Stanley had asked the deceased to help put the trucks away, and at the time of the accident Mr. Stanley was in the other truck backing it away. He was a distance of about twenty feet from the truck Mr. Scharlott was to put away, and could not hear the conversation between Mr. Scharlott and the Brooks boy in the cab of the truck in question.

"Mr. Scharlott had been given specific instructions by his employer that no one else was to drive the truck except himself."

We desire to add to the above statement a few comments of our own. The assertion in the last paragraph, with reference to the specific instruction that no one was to drive the truck except Scharlott, is incomplete. We quote from the record the only evidence on this point, as given by Edward A. Kraus, manager of the bottling company:

"Yes, sir, they were given specific instructions at the time they were employed that no one else was to drive the truck except themselves, from the time they left in the morning until they returned in the evening."

The witness in his answer, when he used the word "they", was referring to four salesmen of which Scharlott was one. We also desire to add that both of the boys, Daniel Stevens and David Lee Brooks, in addition to helping the salesmen on their routes also performed duties at various times at the plant. They were paid by the bottling company for these duties and while on the premises were under the control of the defendant company. Mr. Stanley, who had asked the deceased to put the trucks away, was in charge of the plant at the time of the accident.

The sole contention made on this appeal by appellants is that the death of Scharlott did not arise out of and in the course of his employment. This contention of appellants is based on the theory that Scharlott had been specifically instructed that no one else should be permitted to drive the truck he was employed to operate; that at the time of the accident he had violated this instruction by urging David Lee Brooks to drive the truck. Appellants assert that "his injury was caused by his act in inducing the Brooks boy to drive the truck while he stood upon the running board." We do not think this last statement accurate. Brooks testified that he was afraid to drive and did not intend to do so. Note his evidence:

"Q. Then what happened? A. Well, Mr. Al came out and stood on the running board and opened the door and I was sitting on the righthand side and he told me to get under the steering wheel and drive the truck into the garage so I told him I didn't know how to drive and I told him I was afraid and he kept telling me what to work, told me to turn on the gas and put my foot on some of the pedals or something so I kept telling him I was 'skeered' so Mr. Stanley wanted to close up the factory so I got ready to go out of the garage when Stevens put his foot on the starter.

"Q. Now what were you doing to those things as he was directing you, what were you going to eventually do? A. I was going to get out....