Watson v. Marshall's U. S. Auto Supply

• Decision Date: 22 January 1945
• Citation: 186 S.W.2d 556,238 Mo.App. 1219
• Parties: Clifford E. Watson, Employee, v. Marshall's U.S. Auto Supply, Inc., Employer and Maryland Casualty Company, a Corporation, Insurer
• Court: Kansas Court of Appeals

186 S.W.2d 556

238 Mo.App. 1219

Clifford E. Watson, Employee, v. Marshall's U.S. Auto Supply, Inc., Employer and Maryland Casualty Company, a Corporation, Insurer

Court of Appeals of Missouri, Kansas City

January 22, 1945

Appeal from Jackson Circuit Court; Hon. Paul Buzard, Judge.

Affirmed.

James D. Reeves, Watson, Ess, Groner, Barnett & Whittaker, Carl E Enggas and Douglas Stripp for appellants.

(1) The circuit court erred in reversing the final award of the commission and in remanding the cause. (a) It so erred because the question whether the accident arose out of and in the course of the emiloyment is one of fact, the award is in the nature of a special verdict of a jury, there were disputes in the evidence, and different inferences might be drawn, and the commission's finding was conclusive if supported by substantial, competent evidence. Leilich v Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, 604; Ulman v. Chevrolet-St. Louis Division, 349 Mo. 906 163 S.W.2d 778; Bise v. Tarlton (Mo. App.), 35 S.W.2d 993; Tucker v. Daniel Hamm Drayage Co. (Mo. App.), 171 S.W.2d 781, 787; Ashwell v. United States Seed Co. (Mo. App.), 167 S.W.2d 950; Philips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551; Shroyer v. Missouri Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Teague v. LaClede-Christy Clay Prod. Co., 331 Mo. 147, 52 S.W.2d 880; Weaver v. Norwich Pharmacal Co., 347 Mo. 995, 149 S.W.2d 846, 847; Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 443; O'Neil v. Fred Evens Motor Sales Co. (Mo. App.), 160 S.W.2d 775, 778. (b) The award was supported by substantial, competent evidence and by the appellate decisions in similar cases. Duggan v. Toombs-Fay Sash & Door Co., 228 Mo.App. 61, 66 S.W.2d 973; Kinkead v. Management & Engineering Corp., 232 Mo.App. 175, 103 S.W.2d 545; Smith v. Seaman & Schuske Metal Works Co., 344 Mo. 559, 127 S.W.2d 435; Huskey v. Kane Chevrolet Co. (Mo. App.), 173 S.W.2d 637; Dunnaway v. Stone & Webster Eng. Corp., 227 Mo.App. 1211, 61 S.W.2d 398; Conklin v. Kansas City Public Service Co., 226 Mo.App. 309, 41 S.W.2d 608; Edwards v. Al Fresco Advertising Co., 340 Mo. 342, 100 S.W.2d 513; McMain v. J. J. Connor & Sons Constr. Co., 337 Mo. 40, 85 S.W.2d 43; O'Neil v. Fred Evens Motor Sales Co. (Mo. App.), 160 S.W.2d 775; Schneider's Workmen's Compensation Law, Vol. I, Sec. 276, p. 845.

Leo T. Schwartz for respondent.

R. S. McKenzie of counsel.

(1) Where the facts are undisputed, the question whether the injury arose out of and in the course of employment is a matter of law for determination by the courts and the commission's award is not binding on the courts. Metting v. Lehr Const. Co., 225 Mo.App. 1152, 32 S.W.2d 121, 123; Carlton v. Henwood, 232 Mo.App. 165, 115 S.W.2d 172, 178; Horrell v. Chase Hotel, Inc., et al. (Mo. App.), 174 S.W.2d 881, 886; Palm v. Southwest Missouri Wholesale Liquor Co. (Mo. App.), 176 S.W.2d 528; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264. (2) The circuit court rightfully reversed the award because there was no competent evidence to support the award made and, as a matter of law, respondent's injury arose out of and in the course of his employment. Sec. 3732, R. S. Mo., 1939; Carlton v. Henwood, 232 Mo.App. 165, 115 S.W.2d 172, 178; Snorgrass v. Cudahy Packing Co., 229 Mo.App. 944, 83 S.W.2d 226; Metting v. Lehr Const. Co., 225 Mo.App. 1152, 32 S.W.2d 121, 123; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264; Palm v. Southwest Missouri Wholesale Liquor Co. (Mo. App.), 176 S.W.2d 528; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128, 130; Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Western Pipe & Steel Co. v. Industrial Accident Co. (Cal. App. 1942), 121 P.2d 35; Tingey v. Industrial Accident Commission (Cal. Sup.), 140 P.2d 410; Cardillo v. Hartford Accident & Ind. C. (App. D. C., 1940), 109 F.2d 674; Zeier v. Boise Transfer Co., 43 Ida. 594 Pac. Pac. 209; Gibson v. New Crown Market, 208 A.D. 267, 203 N.Y.S. 355; Hartford Accident & Ind. Co. v. Durham (Tex.), 222 S.W. 275; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P.2d 748; Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841; Federal Mutual Liab. Ins. Co. v. Industrial Accident Com., 94 Cal.App. 251, 270 P. 992; Soden v. Public Service Transportation Co., 4 N. J. Misc. 817, 134 A. 560; Stratton v. Interstate Fruit Co., 47 S.D. 452, 199 N.W. 117; Sztorc v. James H. Stansbury, Inc., 189 A.D. 388, 179 N.Y.S. 586.

OPINION

Dew, J.

Respondent made claim before the Missouri Workmen's Compensation Commission for award of damages alleged to have been sustained while in the course of his employment by appellant Marshall's U.S. Auto Supply Company, Inc. On the first hearing the Commission granted the respondent compensation. Upon later review by the full Commission, compensation was denied and the Commission found that the condition complained of was not the result of an accident arising out of and in the course of the respondent's employment, one member of the Commission dissenting. From the latter action of the Commission respondent appealed to the Circuit Court, which reversed the said final award of the Commission denying compensation, set the same aside, and ordered the cause remanded to said Commission. From such judgment of the Circuit Court appellants appealed to this court.

There is no dispute as to the material facts. All the evidence in the hearing was supplied by respondent and his witnesses, except two witnesses for appellants as to distance and locations. The facts, in substance, are as follows:

Respondent and the appellant Marshall's U.S. Auto Supply Company, a corporation, on April 18, 1942, were respectively employee and major employer, both working and operating under the Missouri Workmen's Compensation Law. The employer's liability under said Compensation Law was insured by appellant Maryland Casualty Company.

At the time of the accident respondent was employed as a supervisor by appellant Supply Company, checking up and inspecting his employer's several stores in and about Kansas City. A part of his duties was the collection of accounts. For such collection work he used his own automobile, or that of someone else when his car was not available. When out in the territory on the job of collecting or adjusting accounts he had no fixed hours, no directions as to routes of travel, no specified time or place for meals. As to these matters he was permitted to and did use his own discretion. The employer always paid for his meals and other expenses when he was on outside work.

On the day in question respondent was working out of the Independence, Missouri, store of his said employer. He was told about noon to collect the account of one Drake in Kansas City. Respondent's car was in a garage for repairs. He called Mr. Eichenberger, a friend, who consented to take respondent to Kansas City in Eichenberger's car to contact the debtor Drake. They drove directly to Kansas City over 15th Street, and to Drake's place of employment. Finding the place closed, they then drove to the neighborhood of Drake's place of residence in Kansas City, searched for Drake's car and for the tires for which respondent sought payment, and finally found Drake, with whom the account in question was discussed.

It was then between 5:00 and 5:30 P. M., and it was respondent's duty to return to and report at his employer's store at Independence before it closed, and to turn in some money belonging to the company in his possession. Respondent had no other collections to attend to at the time. Eichenberger then, with respondent still with him, started back toward Independence by way of 15th Street, as they had come. Upon reaching the city limits of Kansas City, respondent realized that he had had no lunch that day and offered to buy sandwiches for both if Eichenberger would stop for same. Eichenberger stated that there was no place "along here" to get anything, and suggested the B-B Lodge, saying that it was "right on the way." There were eating places eastward along 15th Street between Centropolis and Independence, but Eichenberger considered them undesirable. Eichenberger turned off 15th Street at Blue Ridge Road and drove south 2.6 miles to the B-B Lodge. There they ate several sandwiches, had coffee, respondent telephoned his wife not to wait to meet him in Kansas City, telephoned the garage regarding his car, and between times they played the marble machine in the place, and drank a bottle of beer, all this consuming about 45 minutes at the said eating place. The whole time consumed between leaving 15th Street and leaving the lodge did not exceed one hour.

Leaving the luncheon place, Eichenberger then drove south on Blue Ridge Cut Off, which, two and a half miles south, intersects Old Highway 40, which leads eastward to Noland Road, which latter road runs directly northward into Independence. Eichenberger stated that he wanted to pay a man some money at the intersection of Old Highway 40, and that it would not "take more than a minute." Respondent reminded Eichenberger that respondent "had to get back to the Independence store before closing time." Eichenberger explained that he could get to Independence as quickly by that route as over the shorter routes because of traffic and signal stops. He further explained that he would "Go down and cut in on Noland," avoiding stop lights on the other routes. There were two or three shorter routes to Independence. As they proceeded south from the Lodge, they were crowded off the highway by another car, and respondent there sustained his injuries.

Had respondent and Eichenberger continued on 15th Street instead of...