MARY BEEM v. H. D. LEE MERCANTILE COMPANY, Employer, and EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Insurer, Appellants
Division One
July 9, 1935
85 S.W. (2d) 441
Motion for rehearing filed; motion overruled at May Term, July 9, 1935.
*NOTE: Opinion filed at September Term, 1934, April 17, 1935
The judgment is reversed. Ferguson and Sturgis, CC., concur.
PER CURIAM: — The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, John N. Monteith
The accident occurred in Cass County and an appeal was taken by defendants to the circuit court of that county, which, on
There is no dispute that claimant‘s husband at the time of his death was a traveling salesman in defendant‘s employ. His home and headquarters were at Harrisonville, Missouri, and his trade territory was around that city, including the town of Pleasant Hill, about twelve miles distant. He did his traveling by automobile. On the morning of Friday, March 10, 1933, he was found dead in his automobile near the highway leading from Pleasant Hill to Harrisonville, but nearer to Harrisonville, and the tracks of his car showed he had been traveling in that direction. He had been dead several hours when found with a bullet hole through his head and he and the car seat covered with blood. He had been in Pleasant Hill the evening of Thursday, March 9, and left there after midnight ostensibly to return to his home at Harrisonville. This was his usual route. He had some money of his own and some that he had collected for his employer and it is conceded that he was likely shot and killed on his road home from Pleasant Hill for the purpose of and to accomplish a robbery by some person never apprehended.
Without going into detail, the evidence shows that the deceased, W. D. Beem, pursued his work and conducted the business of traveling salesman for his employer in the usual manner of traveling salesmen in rural districts. He had a route sheet covering a week‘s work showing what towns or country stores he would make each day, on an average of five or six a day, so that his employer would know where to reach him by phone or letter on any particular day. He was supposed to follow this route and be at each town at the time designated as near as practical, but the details were largely in his discretion and governed somewhat by circumstances. His hours of work were largely in his discretion, sometimes short and often running into the night. He tried to be at his proper starting point every morning and visit the towns listed on that day. He was required as far as practical to send in his orders and remit his collections every day and Pleasant Hill was a convenient point to do this on Thursday evening. Also his mother-in-law lived there and when convenient he took his evening meal with her. He arrived at Pleasant Hill on the evening of Thursday, March 9, called on some
As we understand defendants’ contentions, they concede that the evidence shows that the deceased till about nine-thirty, P. M., March 9, 1933, the night he was killed, was engaged in work arising out of and in the course of his employment as a traveling salesman, and that, had he at once and without stepping aside to engage in something not arising out of and in the course of his employment, started for Harrisonville, his traveling home to Harrisonville that night would be so included and the accident which happened to him causing his death in so doing would be compensable. What defendants claim, and the facts so show, is that after the deceased performed the last service for his employer at Pleasant Hill in mailing out his report and orders taken to his employer at nine-thirty P. M., he then stepped aside from any service for or performance of any duty to his employer by going to an all-night restaurant in Pleasant Hill, not to sell goods for his employer to any present or prospective customer, but purely for his own pleasure, and there engaged in playing cards with some companions purely for his own amusement or pastime till about twelve-thirty A. M.; and defendants further claim that the deceased did not again take up or resume his employment or work incident thereto before his death, notwithstanding the fact that after the three hours spent in his own pleasure in playing cards at Pleasant Hill he took up and resumed his regular line of service and routine employment in driving his automobile to Harrisonville over the regular and proper route and in so doing met with this fatal accident.
We think that appellants’ learned counsel concede that the word “employment,” when applied to a traveling salesman, includes both traveling from place to place and selling goods; and that an accidental injury or death arising out of and in the course of his employment covers both the time and place of the traveling as well as the selling of goods. This is the construction placed on our statute, following the construction placed on similar statutes by other courts, by this court in Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S. W. (2d) 128, and that ruling has been steadily adhered to. [Shroyer v. Missouri Livestock Commission Co., 332 Mo. 1219, 61 S. W. (2d) 713; Schulte v. Grand Union Tea & Coffee Co. (Mo. App.), 43 S. W. (2d) 832; Duggan v. Toombs-Fay Sash & Door Co. (Mo. App.), 66 S. W. (2d) 973.] The Wahlig case involved the question of whether a traveling salesman, who was injured by a train at a railroad crossing while he was traveling in his automobile going to see a customer in order to sell him goods, suffered injury from an accident arising out of and in the course of his employment. This court so held and said: “The courts of Great Britain and a large
The appealing defendants rely on what we may term an exception to the general rule of liability imposed by the Compensation Act, which they state thus: “Deceased had abandoned his employment for his own personal pleasure prior to his death and at the time of his death had not yet resumed his employment and therefore his death was not caused by an accident arising out of and in the course of his employment.” We agree to this statement of the law but we do not agree that it is applicable to the facts found by the Compensation Commission and as disclosed by this record. Appellants argue that the deceased finished his work for his employer at Pleasant Hill when he made up and mailed his day‘s report and the orders taken to his employer at about nine-thirty P. M., and that his
The facts here, however, are that deceased finished his purely personal pleasure of playing cards at about twelve-thirty A. M., and then did exactly what defendants insist that he should have done at nine-thirty P. M., that is, drive his automobile over the highway from Pleasant Hill to Harrisonville. Had the deceased on finishing his work for his employer at Pleasant Hill at nine-thirty P. M., promptly commenced traveling in his automobile to Harrisonville over this same usual route, there to stay over night and resume his traveling and selling goods the next morning, as was his custom and intention, and had met with this same accident at the place it occurred (though at an earlier hour of the night), we do not believe that defendants would contend that such accident did not arise out of and in the course of his employment. Certainly they could not successfully so contend under the repeated court rulings. [Schulte v. Grand Union Tea & Coffee Co. (Mo. App.), 43 S. W. (2d) 832; Sawtell v. Stern Bros. & Co. (Mo. App.), 44 S. W. (2d) 264; Webb v. Northside Amusement Co. (Pa.), 147 Atl. 846; Rachels v. Pepoon (N. J.), 135 Atl. 684, 139 Atl. 923; Meyer v. Royalton Oil Co. (Minn.), 208 N. W. 645; Anderson v. Nagel, 214 Mo. App. 134, 259 S. W. 858, 861.] These cases hold that, although a traveling salesman or like employee abandons his employment for a time for work or pleasure of his own, yet if he resumes his employment and is thereafter injured by an accident while pursuing such resumed employment, the accident is one arising out of and in the course of his employment. The Schulte case, supra, is in point and the commission there found from the evidence that the salesman “deviated from his employment” about five o‘clock in the afternoon and spent the time from then till eight o‘clock that night “at the home of Julia Brown to serve a purpose of his own and not that of his employer,” but that “when he left the home of Julia Brown about eight o‘clock
“In each of those cases the employee, on his employer‘s trip, deviated from the natural route to go on a personal errand, but the accident happened after the personal errand was accomplished and the employee had started back to the place where he was to perform some service or work for the employer. The cases reasoned that although there was a departure, the employee had resumed the employer‘s service at the time of the accident.”
If the traveling from town to town for the purpose of selling the employer‘s goods is as much within the employment of a traveling salesman as the selling of goods at such towns, and we think it is, then a return to and resumption of the regular and necessary traveling after an interruption and departure from the employment for pleasure or work purely personal was ended, is as much a return to and resumption of the employment as would be a return to and resumption of the selling of the employer‘s goods. Under the facts here, the fact of the deceased having engaged in playing cards for his own pleasure at the restaurant in Pleasant Hill for some three hours before resuming his usual travel to Harrisonville, had no other effect on the course of his employment than that he was at the place of the accident some three hours later than if he had not made such diversion. There are cases holding that a casual and inconsequential engagement in personal pleasure or work does not even make a break in the continuity of the employment (Consolidated Underwriters v. Breedlove (Tex.), 265 S. W. 128; Sawtell v. Stern Bros. & Co., supra); and that the fact that such diversion causes the salesman or other employee to be traveling on a different street or road, at least when not extra hazardous, does not defeat com-
The case of Duggan v. Toombs-Fay Sash & Door Co. (Mo. App.), 66 S. W. (2d) 973, is relied on by appellants as holding the contrary. There a traveling salesman while at home on Sunday went to a mail box to mail some post cards to customers he intended calling on during the week. After mailing such post cards at a mail box he went to visit a friend and after spending some time in a purely social visit he and his wife took a sort of joy ride, picking up their son and finally reaching home. It was on this joy ride that the accident happened. The writer of that opinion said: “On this particular day he used the car (automobile) to post the cards. There can be no question but that posting the cards was in the course of his employment. And if he had returned directly home from the mail box and had received the injury on his direct return home, there would be no question in the writer‘s mind but that he would be entitled to compensation, because his going and returning from mailing the cards would be some acts incident to his employment. But he did not return directly home from the mail box. Immediately after mailing the cards he commenced to use the car for his own pleasure. . . . It could not well be contended that, if he had gone to Lebanon to visit friends and to engage in a bridge game, that he would have been doing anything incident to his employer‘s business, and, if he had been hurt while at Lebanon, or in going to Lebanon, that his employer was liable. We think it is equally as certain that, if he had been hurt on returning from Lebanon, his employer would not be liable for his injury, for his return trip from Lebanon to his home could in no sense be considered a part of his return trip from mailing the post cards, even though it occurred before he had returned from mailing the cards.
“When he decided at the mail box to not return home but to go on a visit for his own pleasure, he at that time appropriated the use of the car for his own pleasure, and that use continued, as we view it, until he got back home from the pleasure trip, and the going back home by way of where his son was visiting was a consummation of and a part of the pleasure trip, and it was on this pleasure trip that the injury occurred. That is not the case here. In this case the driving from Pleasant Hill to Harrisonville that night was no more a trip purely for the deceased‘s pleasure than it would have been if made directly after the deceased mailed his orders to his employer at nine-thirty P. M. The diversion for pleasure in playing cards at the restaurant ended before deceased started on that journey.
That deceased‘s death was an accident within the statutory definition of that term is hardly questioned. The statutory definition is (
Defendants also contend that such accident did not “arise out of” the deceased‘s employment, which term signifies a causal connection between the death and the employment. [Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S. W. (2d) 128; Sweeny v. Sweeny Tire Stores Co. (Mo. App.), 49 S. W. (2d) 205, 207.] This means in effect that, leaving out of the case and ignoring the fact of the deceased playing cards at a restaurant for some three hours as being an immaterial incident and proceeding on the theory that deceased, as soon as his work for his employer was finished at Pleasant Hill, at once proceeded on his regular journey to Harrisonville, his next selling point, and that the fatal robbery had happened on that journey, yet defendants would not be liable for want of a sufficient showing that the accident arose out of deceased‘s employment. This same defense, indeed, if applicable here, would apply if the deceased had been killed for the purpose of robbery while traveling between any other points in his regular route or even while engaged in the actual selling of goods for his employer. Along this line, defendants argue that the motive of the person who killed the deceased may have been revenge or ill-will and not robbery. If that makes any difference, we are bound by the finding of the commission that deceased‘s death was the result of robbery. Clearly the evidence supports such finding. It is urged, however, that although his death was caused by his assailant‘s assault in robbing him, it is wholly conjectural whether such assailant was robbing deceased of his own money or that of his employer — whether deceased was re-
We do not think the case of Sweeny v. Sweeny Tire Stores Co. (Mo. App.), 49 S. W. (2d) 205, is in conflict herewith. What the court there said as to the robbery resulting in the decedent‘s death growing out of the protection and preservation by decedent of his
We hold, therefore, that deceased‘s death was a compensable accident both arising out of and in the course of his employment by the defendant and affirm the judgment of the trial court. It is so ordered. Ferguson and Hyde, CC., concur.
PER CURIAM: — The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur.
HOMER STOGSDILL V. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.—85 S. W. (2d) 447.Division One, July 9, 1935.