Selvey v. Robertson

Decision Date21 May 1971
Docket NumberNo. 9026,9026
Citation468 S.W.2d 212
PartiesMary SELVEY et al., Claimants-Respondents, v. Darrell D. ROBERTSON d/b/a Robertson's Dairy, Employer-Appellant, and Continental Insurance Company, a corporation, Insurer-Appellant.
CourtMissouri Court of Appeals

Buehner & Thomas, L. R. Buehner, Joplin, for appellants.

Boyer & Ratzlaff, Gordon R. Boyer, Lamar, for claimants-respondents.

STONE, Judge.

In this proceeding under the Missouri Workmen's Compensation Law (Chap. 287), the widow and minor children of Leland Gayle Selvey, an employee of Darrell D. Robertson d/b/a Robertson Dairy, seek to recover death benefits on account of the employee's death in a tragic motorcycle-pickup crash on Highway 160 east of Lamar, Missouri, on August 25, 1967. (All statutory references are to RSMo 1969, V.A.M.S.) The referee found that, at the time of his death, the employee was engaged in exempt farm labor (§ 287.090, subsec. 1, subd. (2)) as to which the employer had not elected to bring himself within the operation of the Compensation Law (§ 287.090, subsec. (2)), and accordingly denied compensation. On review, the Industrial Commission adopted the referee's findings and additionally found 'that deceased employee was in excepted employment in that he was engaged in work long familiar as an incident of ordinary farming' and 'at the time of his death he was returning from work which was incidental to his employment as he was paid, portal to portal.' On claimants' further appeal, the circuit court filed an elaborate written opinion, including findings that 'decedent was not a farm employee' and that 'he was not engaged in farm duties at the time of the fatal accident but was being paid 'portal to portal," reversed and set aside the final award of the Industrial Commission denying compensation, and entered judgment awarding death benefits to claimants and directing payment of burial expenses as provided in § 287.240. With the laboring oar thus placed in their hands, the employer and insurer bring the case to us.

Particularly in view of the briefs and arguments here, it appears appropriate to emphasize at the outset that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Industrial Commission reasonably could have made the findings and award under consideration, this does not mean that either ocurt may substituate its own judgment on the evidence for that of the Commission. Rather, a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Brown v. Missouri Lumber Transports Inc., Mo., 456 S.W.2d 306, 307; Ricks v. H. K. Porter, Inc., Mo., 439 S.W.2d 164, 166(2), 167(3--6); Snowbarger v. M. F. A. Central Co-operative, Mo. (banc), 349 S.W.2d 224, 225(2); Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 93(1). Our statement of facts accords appropriate and required recognition to that basic principle of judicial review in this category of cases. Vandaveer v. Reinhart & Donovan Const. Co., Mo.App., 370 S.W.2d 156, 158; Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 802.

Darrell D. Robertson operated a milk processing plant and store in Lamar, Missouri. That real estate was acquired by Darrell and title thereto was taken in his name. The raw milk for the processing plant was supplied by a herd of cows on 'the family farm . . . located approximately seven miles northeast of Lamar,' which was owned by Darrell's father, Loyd F. Robertson. Darrell 'grew up' on that farm and, while yet a youth, acquired 'some cows' of his own which became and remained a part of the herd of cows on the farm which he was a student in Missouri University and thereafter in military service. After his discharge from service in 1959, he and his father went 'into the dairy business together' as equal partners. Each of them owned 'some of the cows' in the herd on the family farm, with title to the farm remaining in the father. All of the farm expenses 'pertaining to the production of milk' and all of the expenses of the processing plant were paid from the same 'dairy account,' the net profits of the partnership enterprise were credited to the father and son 'fifty-fifty,' and annual partnership tax returns were filed on that basis.

Leland Gayle Selvey was employed by Darrell about four years prior to the fatal accident. The Selvey family resided 'rent free' in a house owned by Darrell which was next door to the processing plant and store in Lamar. When, at the hearing before the referee, the widow was asked by her counsel 'what did your husband do for Darrell Robertson,' she answered 'he milked the cows'; and the next question, 'did he have any other duties other than milking cows,' elicited the simple, unelaborated answer, 'no.' To perform these duties, he made two round trips daily, one early in the morning and the other early in the afternoon, from his residence to the Robertson farm seven miles northeast of Lamar. The milking process consisted of 'getting (the cows) washed and ready for the (automatic) milkers' and then milking them four at a time. Milk was transported from the farm to the processing plant three times each week in a bulk tank on a trailer hooked to a pickup truck owned by the dairy. The empty tank was taken from the processing plant to the farm on the early afternoon trips on Mondays, Wednesdays and Fridays but, as Darrell explained, on each occasion the tank was not filled and returned to the plant until the following morning. Just before the empty tank was moved from the plant on the next trip to the farm, the interior of the tank was cleansed and rinsed with water and then drained.

For his early morning trips to the Robertson farm, Selvey always provided his own transportation, using either his motorcycle or the Selvey family car. One of the benefits accruing to Selvey by reason of his residence next door to the processing plant and store was that on the afternoon trips he frequently rode to the Robertson farm in the dairy pickup. As Mrs. Selvey agreed on cross-examination, 'when (Darrell) was there' he drove the pickup; 'if (Darrell) wasn't there' her husband drove the pickup but that was not 'a part of his regular duties.' 'Normally' Darrell rinsed and drained the interior of the empty bulk tank before it was hooked to the pickup and taken to the farm, but 'on occasions when (he) was not present or would perhaps be late' Selvey attended to the rinsing and draining of the empty tank. However, Darrell testified positively that Selvey had 'no assigned duties' in the processing plant or store and that his only 'required duties were to milk cows.'

Initially, Selvey was paid a fixed wage per month, but sometime prior to his fatal accident he went on an hourly rate 'from the time he left home until he returned home,' the moving consideration for this change having been (so Darrell explained) that 'it was more fair to compensate' Selvey on that basis because from time to time there were substantial variations in the number of cows to be milked. Upon his return from each trip to the farm, Selvey recorded his time on a time sheet in the dairy store and then went home. While returning on his motorcycle from his early morning trip to the farm on Friday, August 25, 1967, he sustained fatal injuries as the result of a collision with a pickup truck which occurred at a point along the route customarily traveled between his home and the farm.

On the date of accident, there was in force and effect a workmen's compensation insurance policy issued by Continental Insurance...

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