Weaver v. Norwich Pharmacal Co.

• Citation: 149 S.W.2d 846,347 Mo. 995
• Decision Date: 18 April 1941
• Docket Number: 36629
• Parties: Mary O. Weaver, Appellant, v. Norwich Pharmacal Company, and Utica Mutual Insurance Company
• Court: United States State Supreme Court of Missouri

149 S.W.2d 846

347 Mo. 995

Mary O. Weaver, Appellant, v. Norwich Pharmacal Company, and Utica Mutual Insurance Company

No. 36629

Supreme Court of Missouri

April 18, 1941

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

William R. Schneider and Frank E. Atwood for appellant.

(1) The admitted uncontradicted facts of record established for claimant appellant a strong prima facie case and the employer's and insurer's burden of destroying it was not sustained by any substantial competent evidence of probative force, in that the award and judgment appealed from is based entirely upon mere suspicion, conjecture innuendo and surmise. Mutual Life Ins. Co. v Hillman, 145 U.S. 285; Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 684, 29 S.W.2d 128; Kinkead v. Management Eng. Corp., 103 S.W.2d 545; Harby v. Marwell Bros., 196 N.Y.S. 730, 203 A.D. 525; Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d 832; Beem v. Lee Merc. Co., 337 Mo. 114, 85 S.W.2d 444; Barrager v. Ind. Comm., 238 N.W. 368; Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264; Bennett v. Marine Works, Inc., 273 N.Y. 429. (2) When burden of proof shifts to employer and insurer. Peterson v. C. & A. Ry. Co., 265 Mo. 462, 178 S.W. 182; Wishcaless v. Hammond Standish Co., 166 N.W. 993; 2 Schneider on Workmen's Compensation, p. 1866. (3) Analysis of employer's and insurer's evidence. Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880; Kenser v. Ely Walker D. G. Co., 226 Mo.App. 1016, 48 S.W.2d 167; Thurman v. Fleming-Young Coal Co., 49 S.W.2d 288; Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232; Knupp v. Potashnick Truck Serv. Co., 135 S.W.2d 1084; Stepaneck v. Mark Twain Hotel, 104 S.W.2d 761; Yancey v. Egyptian Tie & Timber Co., 95 S.W.2d 1230; McWhorter v. White Baking Co., 81 S.W.2d 992; Adams v. Lilbourn Grain Co., 226 Mo.App. 1030, 48 S.W.2d 147; Friede v. George Lytle, Inc., 127 S.W.2d 40; Carlton v. Henwood, 232 Mo.App. 165, 115 S.W.2d 172; Carson v. Hagist, 143 S.W.2d 355. (4) Weaver was an employee. (5) The Missouri Workmen's Compensation Commission had jurisdiction. State ex rel. Weaver v. Mo. Workmen's Comp. Comm., 339 Mo. 150, 95 S.W.2d 641.

A. A. Alexander and Albert Miller for respondents.

(1) The court below, in affirming the award of the Workmen's Compensation Commission, rendered the only decision it could have same. Where the evidence is conflicting on the issue of whether an accident arises out of and in the course of employment, a question of fact is involved for the determination of the commission alone. Lumpkin v. Sheidley Rlty. Co., 53 S.W.2d 388; Sawtell v. Stern Bros. & Co., 44 S.W.2d 267; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 604; Hoffman v. Mo. Pac. Ry. Co., 63 S.W.2d 429. That function is definitely committed to the triers of fact and no court can weigh the evidence. Sec. 3342, R. S. 1929. Even though in cases where it might reasonably appear that the decision is against the weight of the evidence, the full commission determines the controlling question of fact against appellant, and not without substantial evidence to support the finding. Doughton v. Marland Refining Co., 53 S.W.2d 241. The commission's finding against the claimant that the accident did not arise out of and in the courseof employee's employment and the award of no compensation was not only a ruling that the claimant did not make out a prima facie case, but was intended to and does constitute a finding for the employer and against the claimant on the whole evidence, with an award based on such finding. Secs. 3339, 3349, R. S. 1929; Wright v. Penrod, Jurden & Clark Co., 88 S.W.2d 413; Hoffman v. Mo. Pac. Ry. Co., 63 S.W.2d 429; DeMoss v. Evens & Howard Fire Brick Co., 57 S.W.2d 721. In this case there is substantial evidence to sustain, and in support of, the commission's finding that the employee's death did not arise out of and in the courseof his employment, and the award of no compensation for the accident. Therefore, the judgment of the circuit court affirming the award should be affirmed. Hinkle v. Miller, 56 S.W.2d 827; Cassidy v. Eternit, Inc., 32 S.W.2d 78; Laws 1927, p. 492, secs. 3, 7(c), p. 496. (a) The court did not err in affirming the award of the Workmen's Compensation Commission. The finding and award of the commission in favor of the employer and insurer, and against the claimant, awarding no compensation or death benefit for the accident, and the finding of the commission, that from the evidence employee's death was caused by said accident, but that said accident did not arise out of and in the course of his employment, and denying compensation or death benefit, are, upon the record, supported by substantial competent evidence; and said award and finding of the commission resting on fact findings supported by competent evidence are conclusive and binding upon both the circuit court and this court. Secs. 3299, 3342, R. S. 1929; Elsas v. Montgomery Elevator Co., 50 S.W.2d 133, 330 Mo. 596; State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1009; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1020; Haill v. Champion Shoe Machinery Co., 71 S.W.2d 148; Gillick v. Fruin-Colnon Const. Co., 334 Mo. 135, 65 S.W.2d 927; Borghoff v. Walter Freund Bread Co., 93 S.W.2d 1033; Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W.2d 719; Noto v. Hemp & Co., 83 S.W.2d 139; Bolin v. Swift & Co., 335 Mo. 732, 73 S.W.2d 774; Cripps v. Union May Stern Co., 104 S.W.2d 683; Jenneman v. Consolidated Underwriters, 100 S.W.2d 458; Adams v. Continental Life Ins. Co., 101 S.W.2d 77; Carnahan v. Kurn, 113 S.W.2d 828. (b) Such finding of the Workmen's Compensation Commission, and the award based thereon, is in the nature of a special verdict, and supported by any substantial competent evidence. Secs. 3299, 3342, R. S. 1929; Laws 1927, p. 512, sec. 44; DeMay v. Liberty Foundry Co., 37 S.W.2d 640, 327 Mo. 495; Jones v. Century Coal Co., 46 S.W.2d 196; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 604; Woodruff v. Superior Mineral Co., 70 S.W.2d 1106; State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1009; Cripps v. Union May Stern Co., 104 S.W.2d 684; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1020; Holland v. Mo. Electric Power Co., 104 S.W.2d 279; Jenneman v. Consolidated Underwriters, 100 S.W.2d 460; Shroyer v. Mo. Live Stock Comm. Co., 332 Mo. 1219, 61 S.W.2d 714; Carnahan v. Kurn, 113 S.W.2d 828; Green v. Wagner Electric Corp., 131 S.W.2d 862; Stepaneck v. Mark Twain Hotel Co., 104 S.W.2d 765; Sayles v. K. C. Structural Steel Co., 128 S.W.2d 1051; State ex rel. Probst v. Haid, 333 Mo. 390, 62 S.W.2d 872; Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 920. (2) If the employee steps aside from his master's business, or forsakes his employee steps aside from his master's business, or forsakes his employment, for however short a time, to do an act not connected with such business or goes upon an errand exclusively his own, he is upon his own trip until he has returned to the point of departure from the path of duty, or to a point where, in the performance of his duty he is required to be. Anderson v. Nagel, 259 S.W. 861; Kaufman v. Baden Ice Cream Mfg. Co., 7 S.W.2d 300; Kibble v. Lamar, 54 S.W.2d 428; Nagle v. Alberter, 53 S.W.2d 774; Patterson v. Kates, 152 F. 482; Marier v. St. Paul, Minn., Manitoba Ry. Co., 31 Minn. 353. (3) When an employee abandons or steps aside from his employment and the duties connected therewith, and engages in work or pleasure purely his own, and while so engaged receives accidental injuries, his employer is not liable because the accident does not arise out of and in the course of the employee's employment. Beem v. Lee Merc. Co., 85 S.W.2d 443; Dunneway v. Stone & Webster Engineering Co., 61 S.W.2d 399; Duggan v. Tombs, Fay Sash & Door Co., 66 S.W.2d 978; Miliato v. Jack Rabbit Candy Co., 54 S.W.2d 782; Hebbeler v. St. Louis Pub. Serv. Co., 72 S.W.2d 134; Edwards v. Al Fresco Advertising Co., 100 S.W.2d 516; In re McNicol, 215 Mass. 497, L. R. A. 1916A, 306; Kinkead v. Management & Engineering Corp., 103 S.W.2d 547; McMain v. Connor & Sons, 85 S.W.2d 45.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is a compensation case in which $ 18,276 is the amount claimed. The commission denied compensation. The circuit court (St. Louis County) affirmed the finding of the commission and claimant appealed.

Claimant is the widow of Samuel J. Weaver, deceased employee; the Norwich Pharmacal Company was the employer, and the Utica Mutual Insurance Company the insurer. The principal defense is that the accident resulting in the employee's death did not arise out of and in the course of his employment.

The accident occurred November 27, 1934, and claim was filed January 15, 1935, but the commission declined to take jurisdiction because the contract of the deceased employee with the employer, was made in Illinois. However, claimant was successful in mandamus to compel the commission to proceed. [See State ex rel. Weaver v. Missouri Workmen's Compensation Commission et al., 339 Mo. 150, 95 S.W.2d 641.]

Deceased was a traveling salesman, and he and his family, consisting of the wife and two small children, resided in Richmond Heights, St. Louis County. His territory included St. Louis and St. Louis County. November 27, 1934, he had lunch at the City Hall Drug Store, 200 N. 12th Street, St. Louis, and about 2:45 p. m., in Richmond Heights, he picked up Mrs. X, a neighbor and family friend. They drove west to Hanley Road and then north to Olive Street Road, an improved highway, and...