Schulte v. Grand Union Tea & Coffee Co.

• Decision Date: 08 December 1931
• Docket Number: No. 21746.,21746.
• Citation: 43 S.W.2d 832
• Court: Missouri Court of Appeals
• Parties: SCHULTE et al. v. GRAND UNION TEA & COFFEE CO. et al.

43 S.W.2d 832

SCHULTE et al. v. GRAND UNION TEA & COFFEE CO. et al.

No. 21746.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Law by Marguerite E. Schulte, widow, and others, dependents, for death of William Schulte, husband and father, claimants, opposed by the Grand Union Tea & Coffee Company, employer, and the General Accident, Fire & Insurance Company Corporation, insurer. From judgment sustaining award in favor of claimants, employer and insurer appeal.

Affirmed.

Allen, Moser & Marsalek, of St. Louis, for appellants.

Mark D. Eagleton, James A. Waechter, and Frank P. Aschemeyer, all of St. Louis, for respondents.

BECKER, J.

This is an appeal from the judgment of the circuit court of the city of St. Louis affirming an award of the Workmen's Compensation Commission.

William Schulte, respondents' husband and father, suffered injuries at about 8:45 p. m., on January 10, 1930, when an automobile truck, being operated by him eastwardly on Manchester avenue in the city of St. Louis, collided head-on with a street car running in the opposite direction. From these injuries, Schulte died a few days later. His wife, one of the respondents, in due time filed her claim against the employer and insurer above named to recover compensation.

The answer filed by the employer and insurer denied that the accident arose out of and in the course of the deceased's employment.

In connection with the final award, on hearing for review by the Compensation Commission, the commission entered the following statement of facts and rulings of law:

"Findings of Fact.

"1. Was there an accident? Yes.

"2. Date, January 10, 1930.

"3. Place, St. Louis, Missouri.

"4. Was above employee in employ of above employer at time of accident? Yes.

"5. Did accident arise out of and in the course of the employment? Yes. * * *"

"Statement of Facts and Rulings of Law.

"On review award dated July 8, 1930, is hereby affirmed as to result but the Statement of Facts and Rulings of Law are modified as follows:

"William Schulte was employed by the Grand Union Tea & Coffee Company as a service salesman. He was assigned to a district in the City of St. Louis and was furnished a truck by his employer to perform his duties. His duties required him to go from house to house and deliver merchandise ordered by the customer two weeks previous, collect for it, if possible, and solicit an order to be delivered two weeks later. Also after his day's work to put the truck furnished by the employer in a garage on Penrose Street which was rented by the employer.

"The salesmen usually commenced their work about 7:30 o'clock in the morning and finished their work about 6:30 o'clock in the evening. It is our opinion the instructions to the salesmen to have their cars in off the street by 6:30 o'clock at night were given after January 10, 1930.

"On January 10, 1930, William Schulte, deceased, was in the employment of the Grand Union Tea & Coffee Company and deviated from his employment when he left the home of Mrs. Nora Hamilton, 6649 Garner avenue, and returned to the home of Julia Brown, 6629a Manchester avenue. For the reason we believe he returned to the home of Julia Brown to serve a purpose of his own and not that of his employer. When he left the home of Julia Brown about 8:00 o'clock at night in the employer's truck taking a route which was the logical route to take to Penrose street, it is our opinion he was in the scope of his employment.

"Therefore it is our opinion the injuries received by William Schulte on January 10, 1930, in a collision with a street car, which later caused his death, arose out of and in the course of his employment."

The sole assignment of error raised here is that the circuit court erred in affirming the award entered by the Compensation Commission because, under the evidence and the finding of facts made by the commission, the injuries to the respondent's husband did not arise out of and in the course of his employment.

In support of this contention, it is argued: First, that the award is based upon speculation and conjecture; that the evidence is insufficient to support the finding that Schulte, at the time of his injury, was returning the employer's truck to the garage or performing any other service of his employment; second, that even if he was returning the truck to the garage, Schulte, having abandoned his employment hours before, was not at the time of the accident in the course of his employment, but was bailee of the truck, and was returning it to the garage as such, and not as an employee of the Grand Union Tea & Coffee Company; third, that the injury to Schulte was not due to the risks usually incident to his employment, and did not arise out of his employment.

In passing upon the questions before us, we have in mind that section 3342, Rev. Stat. Mo. 1929, provides that, upon appeal from the final award of the Workmen's Compensation Commission, no additional evidence shall be heard, and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding, and that the findings of fact and award of the commission have the force and effect of the verdict of a jury. Rolens v. Const. Co. (Mo. App.) 24 S.W.(2d) 1077; Kinder v. Hannibal Car Wheel & Foundry Co. (Mo. App.) 18 S.W.(2d) 91; Leilich v. Motor Co. (Mo. Sup.) 40 S.W.(2d) 601, 604. And in determining whether or not an award made by the commission is justified by the evidence on appeal, we consider only the evidence most favorable to the claimants, together with all reasonable inferences which may be drawn therefrom, to support the conclusion of the commission, and will disregard any unfavorable testimony where it is contradicted by the evidence of the claimants. Betz v. Tel. Co. (Mo. App.) 24 S.W.(2d) 224; Cotter v. Coal Co., 222 Mo. App. 1138, 14 S.W.(2d) 660.

The commission, in its finding of facts, holds there was an accident as defined by the act, and that it arose out of and in the course of Schulte's employment. Our Supreme Court in the recent case of Leilich v. Motor Co., supra, in an opinion by Ragland, J., directly held that these are findings of fact 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. * * * The findings are in the nature of a special verdict, and as such are binding and conclusive, if supported by any substantial competent evidence. Whether they are so supported is one of the questions of law calling for decision on this record."

It is argued that since the statement of facts of the commission, filed in connection with its finding of facts, shows that the commission held that Schulte deviated from his employment when he had called on Mrs. Nora Hamilton, 6646 Garner avenue, and from there went back to the home of Julia Brown at 6629a Manchester avenue, "to serve a purpose of his own and not that of his employer"; "that under the circumstances of this case, where the employee totally abandoned his employment for a period of almost five hours, during which time he was drinking, sleeping and cutting up at the home of a friend, where, although he ceased his work for the employer at four o'clock, and it was customary and usual for the salesmen to have their trucks off the street and in the garage by six-thirty, he wrongfully retained possession of the truck to serve his own purposes until almost nine o'clock; and where he then, in an intoxicated or partly intoxicated condition, attempted to drive the truck along the street without headlights and drove it head-on against an approaching street car which was well lighted and plainly visible, we contend that reason and common sense do not support the statement of the Commission that the employee was serving his employer, even...