Claimants Lenore J. Brown, widow, and Karen B. Brown, minor daughter, of Birl J. Brown, were given a Workmen’s Compensation award of $12,400 for his death. The employer and insurer have appealed from the Circuit Court judgment affirming this award by the Industrial Commission.
The case was heard in Division No. 2, and claimants’ motion to dismiss for failure to make a fair and concise statement without argument [Rule 1.08(a)(2), 42 V.A. M.S.] was there overruled. Only one judge concurred in all the rulings made in the-Divisional opinion reversing the award and' the case was transferred to the Court en. Banc. We adopt the statement of facts made in the Divisional opinion hereinafter set out without quotation marks.
David E. Eichelberger was claimants’1 witness. He was president and general manager of the employer corporation. The corporation was a manufacturer and wholesaler of paints, and did some retail business. It had two types of traveling salesmen, viz. t
(1) Trade salesmen, who sold shelf goods-to dealers, who, in turn, sold to the consumer — the home owner or painting contractor.
(2) Industrial salesmen, who sold to manufacturers using paint on products they manufactured.
Claimants’ case rests on the testimony of their witness Sammy Thomas. He testified as follows: He was the proprietor of the “69 Club”, a night club located about a mile south of Pittsburg, Kansas, on Highway No. 69. He received a telephone call at the club about 3:45 P. M. June 17, 1953, from a person who stated he was Mr. Brown and whom he had never met. Brown “said he had been out there earlier in the morning, or evening, rather, before I was open”, and wanted to sell Thomas some paint, stating he could save him money. Thomas told Brown he was busy cleaning the club, went to dinner at 6:00 or 6:30, and couldn’t possibly talk to him until 10:30 or 11:00 P. M. Brown said he intended going to Joplin and wanted to see Thomas before he left. Thomas told Brown he couldn’t see him until around 11:00 P. M. Thomas stated that Floyd M. Hensley, whom he had known for years, and Brown came to his Club about 11:15 or 11:20 P. M. Brown introduced himself. He told Brown he would talk to him in just a minute. Hensley and another boy were sitting there and Brown ordered and paid for the beer, but did not drink the bottle he ordered for himself. Brown *25 ■“asked me if he could sell me some paint; and I said: ‘The place needs painting’; and he said: T can save you a lot of money’; so, I asked him how much would it be to paint the outside of it, and he said: T can’t give you the prices.’ * * * And, I kidded him, and he said he would get the prices and let me know in the morning.” Witness told Brown that S. F. Green, of Independence, Missouri, owned the building, but witness would have it painted if the prices were reasonable. Brown then told Hensley he wanted to go to the hotel and get some sleep because he wanted to see Mr. Thomas in the morning. He stated Brown was not intoxicated; “if he was, I wouldn’t let him come in.”
The collision occurred on No. 69 highway, a little north of the driveway to the 69 Club, as Brown and Hensley were leaving.
It was stipulated that Kansas State Trooper Dunkle, if present, would testify that he was a member of the Kansas State Highway Patrol and investigated the accident soon thereafter; that witness Thomas stated to him that the occupants of the car, Brown and Hensley, had been in his Club; “that they had been drinking, and that he had refused to serve them more than one bottle of beer.” Thomas admitted he talked with the state troopers. He denied making the statement, saying “because they left there with that much beer in the bottle (indicating) .”
Thomas on cross-examination admitted the following convictions of violation of liquor laws. In 1949, he was convicted on three charges. In 1950, he was convicted on four charges. He was convicted on another liquor charge in 1951. He was convicted in 1949 of having in his possession a gaming device. The State of Kansas had closed his 69 Club prior to the hearing on June 14,1954, before the Industrial Commission.
Claimants’ witness Eichelberger further testified: He employed Mr. Brown, after personally interviewing him, as an industrial salesman on June 1, 1953, in the Greater Kansas City area and later extended his territory along the border between Kansas and Missouri. He instructed Brown as to his duties; that is, he was to call at the manufacturers and see the buyer or in some instances the foreman or finisher who specified the paint the manufacturer used on its products. He was to obtain new accounts. The company required its salesmen to submit reports covering the concerns the salesman called on and he explained this to Brown. Brown had a monthly drawing account of $300 plus approved expenses.
Eichelberger testified a salesman had a certain territory, usually set his own time for work; that salesmen were not told to turn down any orders; that they could turn in any order they received and if the buyer’s credit and other factors were satisfactory, it would be accepted, or if the company had a dealer in the area, the order would go to the dealer. He did not recall offhand whether the company had a dealer at Pittsburg. Brown’s type of selling was not to get a man and say “I’ll charge you so much for a gallon of house paint.” Brown did not have the prices on small orders which were made at the time of inquiry and could be obtained by calling the office. “The Referee: Does that type of solicitation, or that type of work, that would be done on that night club, is that within his jurisdiction, or within his territory, as a salesman, to cover that type of work? The Witness: No, sir. * * * The Referee: Any negotiations for any such work, either on night clubs, or any other establishment, was this outside the field of industrial work, for which he was employed ? The Witness: Yes, sir.” The witness assumed the company would have accepted such an order if the credit and other factors were all right, but it had no business with individuals for which Brown was employed. Brown was expected to call on industrial establishments. He was not expected or authorized to seek or to do business with pool halls or night clubs. The witness had purchased *26 the company, which was in rather bad shape financially, in May, 1953, and was trying hard to promote sales and build up its business, but not through pool halls or night clubs.
Brown had made no sale and had submitted no report to the company during the entire period of his employment.
A major account of the company was Winchell’s, at Fort Scott, Kansas, and Eichelberger gave Brown Winchell’s name. Mrs. Brown testified Mr. Brown left Kansas City Tuesday morning, June 16, 1953, and told her he was going to stop in Fort Scott and stay in Pittsburg Tuesday and in Joplin Wednesday. She also stated Eichel-berger told her Mr. Brown was hired as an industrial salesman and would accept orders from anyone at any time.
Floyd M. Hensley, defendant’s witness, testified he had known Brown for six or seven months. Hensley was in Scalet’s pool hall in Pittsburg, June 17, 1953, and Brown came in there about 11:00 A.M. This is the first appearance of Brown in the record after he left Kansas City. Scalet’s is a recreation hall, with pool and billiard tables, pin ball machines, and a newsstand, and sells pop, beer, and sandwiches. Brown and Hensley left Scalet’s about 1:30 or 2:00 P.M. Brown went to his hotel. Hensley returned to Scalet’s about 7:30 or 8:00 P.M. Brown was playing pool. Brown and he were together at Scalet’s until they left at 11:00 or 11:30 P.M. for the 69 Club. He knew he left with Brown. He did not mention Robert Crawford or of having gone to the American Legion Hall. He went to Scalet’s to play pool and drink a few drinks, and had the same purpose in going to the 69 Club. He introduced Brown to Thomas at the Club. Hensley talked to a friend. They were at the Club about five minutes. They were not there fifteen minutes. Brown did not discuss business with Hensley, only told him the territory he made, and Hensley thought Brown was working for a drug company. Brown had previously sold for a pharmaceutical house.
Robert Crawford, defendants’ witness, was a truck driver. He left Scalet’s with Brown and Hensley. He corroborated Hensley’s testimony about playing pool with Brown at Scalet’s, and Hensley introducing Brown to Thomas at the 69 Club. He stated Brown had offered to take him home, and they first went to the American Legion Hall and each had a can of beer and watched a card game. They left for the 69 Club in fifteen or twenty minutes. He didn’t know why Brown went to the Club. He heard Brown or Hensley say: “He may be out there; he goes out there sometimes”, and he thought Hensley and Brown might be looking for somebody. Witness purchased a bottle of beer. Brown and Thomas talked but he did not hear the conversation. He described the Club as “not too big a place” with “juke box music.” He had not finished his beer when Brown and Hensley were ready to leave, and did not go with them. He was not intoxicated that night although he gets drunk frequently.
The referee awarded compensation. The specific findings of the Commission upon review and material to the finding that the employee’s death “arose out of and in the course of his employment” were: “We further find that the employee, just prior to the accident, made a call upon a prospective customer, namely, Sammy Thomas, for the purpose of selling him paint for the employee’s employer; that the employer was anxious to sell paint and that this employee was supposed to promote new accounts and to sell paint wherever possible although he was, primarily, to call upon industrial accounts. * * *
“We further find and conclude that the employee, Birl Brown, would not have made the trip to the night club except for the purpose of attempting to sell paint to the owner of the night club. Brown v. Weber
*27
Implement & Auto Co. [
The review of a compensation case is of the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission, and to determine whether the Commission’s findings, if supported by competent and substantial evidence, are contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp.,
Claimants say Brown v. Weber Implement & Auto Co.,
The relationship of master and servant or principal and agent exists only in contract. Hodge v. Feiner, Mo.App., 78
*28
S.W.2d 478 [2], approved
Birl Brown was employed June 1, 1953 and was killed seventeen days later. He had made no sale of any kind and had submitted no report of any activity as he was expected to do. His employer was a paint manufacturer. He was employed as an industrial salesman to call on manufacturers who used paint on the products they manufactured. There is no evidence that he had any instructions or authority to call on or try to sell his employer’s products to anyone except manufacturers. His employer had trade salesmen to do other kinds of selling, that is selling to dealers. There is no evidence that either class of salesmen ever made sales direct to consumers. Although Eichelberger said an order of any kind would not be turned down, if credit and other factors were satisfactory, the order would be sent to a dealer in the area if there was one; but there is no evidence that there ever was any such order received from any salesman and it is certain there had been none from Brown. Therefore, there is no evidence that the employer had by practice broadened the scope of Brown’s employment or that of any other salesman. Thomas’ convictions, whether for misdemeanors or felonies, were proper to affect his credibility as a witness; and the referee erred in excluding them. Sec. 491.050 RS Mo 1949, V.A.M.S.; State v. Bagby,
The judgment affirming the award is reversed.