Shrock v. Wolfe Auto Sales, Inc., 48933

Citation358 S.W.2d 812
Decision Date16 July 1962
Docket NumberNo. 48933,No. 2,48933,2
PartiesWanda F. SHROCK, Cecilia Michele Shrock and Stephanie Robin Shrock, Respondents, v. WOLFE AUTO SALES, INC., Appellant
CourtUnited States State Supreme Court of Missouri

Chapman & Chapman, Nolan Chapman, Chillicothe, for appellant.

Stephen J. Millett, Kingston (Knipmeyer, McCann & Millett, Kansas City, of counsel), for respondents.

BARRETT, Commissioner.

Upon the claim that her husband, Robert M. Shrock, died as the result of injuries arising out of and in the course of his employment (V.A.M.S. Sec. 287.120) as a salesman for Wolfe Auto Sales the Industrial Commission made an award of $15,500 to Mrs. Shrock and their dependent children, Cecilia, age 6, and Stephanie, age 4. The employer, Wolfe Auto Sales, has appealed from a judgment of the circuit court affirming the award of the commission, and in the circumstances this court has jurisdiction of the appeal. Conley v. Meyers, (Mo.) 304 S.W.2d 9, 10.

Basically, the appellant's claim is that there was not sufficient competent evidence to warrant the making of the award. Specifically, the employer contends that by circumstantial evidence it was established that Shrock's injury and death did not occur 'in the course of his employment' (V.A.M.S. Sec. 287.120) and that, therefore, the dependents' claim was not compensable as a matter of law. The parties have rather extensively briefed the general rules applicable to compensation cases and their review by appellate courts, but it would serve no useful purpose to again encumber an opinion with a repetition of the rules. It is sufficient to list by way of illustration a few of the cases in which the rules were recently set forth. Corp v. Joplin Cement Co., (Mo.) 337 S.W.2d 252; Monical v. Armour & Co., (Mo.) 307 S.W.2d 389; Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28. In Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, a case relied upon by the appellant, there was no conflict in the evidence, the facts were undisputed, and so this court in 1935 declared as a matter of law that Maltz was not an independent contractor. In connection with that case, however, there should be the caveat that since 1935 there has been a change in the scope of review as well as to the effect to be attributed to findings of fact by the commission. Const. Mo., Art. 5, Sec. 22, V.A.M.S.; V.A.M.S. Sec. 287.490, subd. 1(4), Laws of Mo.1955, p. 598. And, as the court pointed out in that case, even in 1935, the claim that the question involved was one of law 'seems academic rather than substantial in the light of the controlling statute' and, since 1945, the constitutional provision which now governs the scope of this court's review.

Wolfe Auto Sales has a Chrysler franchise in Brookfield, Linn County. Robert M. Shrock, age 33, was a full-time employee of the Burlington Railroad and, admittedly, was also employed by Wolfe Auto Sales as a salesman of automobiles. In the year prior to his accident and death on December 10, 1959, he earned and was paid $4,207.84 in commissions by Wolfe. According to Willard Wolfe there was no limitation on Shrock's working hours, he could demonstrate and sell automobiles any time he saw fit and had in fact sold cars at night. He personally owned the 1960 Chrysler demonstrator he was driving on December 10 but it bore Wolfe's dealer's license tags D 491 and was a demonstrator. Donald and Edith Admire owned and operated Lane's Inn, a restaurant and package liquor store, just outside the southeast city limits of Brookfield on Highway 36. On December 10, 1959, Shrock came home from a Burlington run about 7:30 in the evening. He gave the children a bath, took a bath himself, changed clothes and left home in his 1960 Chrysler demonstrator at 9:30, announcing to his wife that "He had to see a man about a car." He arrived at Lane's Inn about 9:45 and talked to both Don and Edith Admire. According to Mrs. Admire 'we had talked about buying an automobile from him,' and she said, 'He was trying to sell us a 1960 Chrysler.' Upon his arrival at Lane's Inn, Mrs. Admire said, 'He asked both of us to go for a ride in it and we both told him that we couldn't get away, both at the same time.' Mrs. Admire was busy waiting on customers and Shrock continued his conversation with Don. Shrock left Lane's Inn at 10:45 and at 11:30, 3.1 miles west of Meadville Junction, 15 Miles from Brookfield, the 1960 Chrysler traveling west crashed into the rear of an automobile stopped on the pavement, killing both Shrock and Admire. Shrock's carcoat and brief case were found in the wrecked automobile and two or three days later were returned to Mrs. Shrock by Willard Wolfe. The brief case was one he usually carried in connection with the sale of automobiles, it contained an order book, Chrysler literature and finance papers. On their face, these noted circumstances warrant and substantially support the commission's finding that Shrock's accidental injury and death arose out of and in the course of his employment. Conley v. Meyers, (Mo.) 304 S.W.2d 9 (an automobile salesman case); Lewis v. Lowe & Campbell Athletic Goods Co., (Mo.) 247 S.W.2d 800; Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28; Dehoney v. B-W Brake Co., (Mo.) 271 S.W.2d 565 (all salesmen cases). The problem here is whether certain additional circumstances, relied on by the appellant, overwhelmingly and necessarily compel a contrary conclusion.

Perry Wolfe, a vice-president and...

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17 cases
  • Davis v. Research Medical Center
    • United States
    • Missouri Court of Appeals
    • April 25, 1995
    ...to findings of fact by the Industrial Commission." Lawson v. Lawson, 415 S.W.2d 313, 316 (Mo.App.1967) (citing Shrock v. Wolfe Auto Sales, Inc., 358 S.W.2d 812, 814 (Mo.1962)); see also Brown v. Weber Moreover, after the adoption of art. V, § 22, appellate courts were no longer bound by the......
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    ...may a fact be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture.' Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812(4). The appellant says the award is not supported by evidence substantial to dispute or overcome the very substantial evi......
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    ...Wigdor Furniture Co., Mo., 281 S.W.2d 789, 797(9); Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105, 108(6); Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815(4); Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428, 434(7).8 See particularly Williams v. Great Atlantic & ......
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