Snorgrass v. The Cudahy Pack. Co.

• Decision Date: 01 April 1935
• Docket Number: No. 18141.,18141.
• Citation: 83 S.W.2d 226
• Parties: MRS. JAMES F. SNORGRASS ET AL., RESPONDENTS, v. THE CUDAHY PACKING COMPANY, EMPLOYER; MARYLAND CASUALTY COMPANY, INSURER, APPELLANTS.
• Court: Missouri Court of Appeals

83 S.W.2d 226

MRS. JAMES F. SNORGRASS ET AL., RESPONDENTS, v. THE CUDAHY PACKING COMPANY, EMPLOYER; MARYLAND CASUALTY COMPANY, INSURER, APPELLANTS.

No. 18141.

Kansas City Court of Appeals. Missouri.

April 1, 1935.

Appeal from Circuit Court of Moniteau County. — Hon. Nike Sevier, Judge.

AFFIRMED.

Frank Quigley, W.W. Carpenter, Jr., and Roy D. Williams for respondents.

Harris & Koontz and James D. Reed for appellants.

SHAIN, P.J.

This case is based upon a claim made before the Workmen's Compensation Commission by Mrs. James F. Snorgrass, widow, and Sara Louise Snorgrass, dependent daughter of James F. Snorgrass, deceased, against the appellant employer and appellant insurer.

The claim as presented before the commission is for compensation by reason of death of the husband and father alleged as a result of injuries received by the deceased in the due course of and arising out of employment by the appellant, the Cudahy Packing Company.

It appears that the deceased was a salesman employed by the Cudahy Packing Company. He lived in the town of Tipton, Missouri, and the territory wherein he operated consisted of a group of towns extending east from Tipton to Jefferson City, Missouri, and south towards the towns of Eldon and Bagnell, thence to Versailles, and back to Tipton in one circuit, and a group of towns west of Tipton extending as far as Smithton, Missouri.

The deceased worked upon a stated salary of $28.35 per week and in addition was paid for mileage in traveling in his own car and for food and lodging when away from Tipton.

It appears that the deceased was given a route sheet which he was supposed to follow on his trip and his mileage appears to have been computed alone from this route sheet. It further appears that the route sheets furnished by the employer to deceased had indicated thereon the hour and day the deceased was to be in the towns on his route. This is explained as being for the purpose that the customers along the route would know when to expect a call.

It is shown that it was the business of the deceased to make collections when calling on the trade and the evidence discloses that goods were sold on weekly terms of collection. In other words, the salesman was supposed to collect on the following week for goods sold the previous week.

The contract of employment is embodied in the record. The employment is expressed as: "From week to week in such capacity and in such manner as said employer may from time to time direct." There is no hours for service specified. There is no mention in the contract of any salesman's route sheet. The route sheet furnished by the company to the salesman appears to be in accordance with a provision for regularity of system in calling upon the trade and, as before stated, as a limitation on mileage to be paid for. There is evidence showing that the time route schedule was not always strictly adhered to. The evidence is to the effect that these variations from the salesman's route sheet was known to the employer. The general salesman for the company, a Mr. Studerbaker, made trips with the deceased and on these trips the route sheet was not adhered to. Mr. Cox, the sales manager of the company, testified that if an extra trip was made by the salesman he received no mileage but admitted that the company accepted orders when taken, regardless of deviation. It is in evidence that the deceased transacted business for his employer much later than six o'clock in the evening, that he even delivered goods of the company on Sunday.

There is evidence to the effect that it was the custom of the deceased to make up his accounts in the latter part of the week and make remittance to the employer for collections made and that on occasions he would drive to a nearby town where he could mail remittances at a later hour than at his home post office.

The evidence discloses that on Friday, December 2, 1932, the deceased had been out on his route; that in the earlier part of the day he had been in California, Missouri, and that a Mr. Reed, who was a customer and who was owing the company money, was out and was not seen by the deceased.

It is further shown that the deceased thereafter was in Tipton, Missouri, and that he left Tipton around five-thirty P.M. on said December 2nd. It is further shown that while in his automobile in the outskirts of California, Missouri, at sixteen minutes to six P.M. of that day, he was in a car accident in which he met his death.

Claim for compensation was made to the Workmen's Compensation Commission, hearing was had and an award was made in favor of the widow, Mrs. James F. Snorgrass, during her widowhood or life, remainder to Sara Louise Snorgrass as her rights and interests may appear.

Thereafter a rehearing was asked and granted and upon rehearing the award was for the employer.

In the award is found the following: "On review award dated June 12, 1933, is hereby reversed and set aside. We find from the evidence that the defendant has failed to prove that the accident resulting in employee's death arose out of and in the course of his employment. Therefore, compensation must be denied."

An appeal was taken by claimants to the Circuit Court of Moniteau County, Missouri.

A hearing of this cause was had in the Circuit Court of Moniteau County, Missouri, at the January term, 1934, of that court. In this hearing, upon appeal, the Circuit Court of Moniteau County reversed the findings and orders of the Workmen's Compensation Commission and ordered the case remanded to the commission for further proceeding not inconsistent with the judgment rendered by said court.

From this judgment, the Cudahy Packing Company and the Insurance Company have duly appealed.

The appellants present assignments of error under seven subheads. When boiled down, the contention is that the Circuit Court of Moniteau County erred in disturbing the findings of the commission, to the effect that claimants had failed to prove that the accident resulting in death arose out of and in the course of employment.

The appellants assign, as reason for claim of error, that the finding of fact is based upon substantial evidence in the case and that the court was bound by such finding.

The appellants further claim error in that the circuit court erred in reaching the conclusion that the deceased died as a result of an accident in the course of, or growing out of, his employment.

OPINION.

At the outset, we state the law to be that where there is any substantial evidence before the Workmen's Compensation...