*1 questions for review are assignments.sufficiently preserving Other complained matters are not unnecessary because the to be noticed another trial. likely recur reversed, and the cause remanded. It is must be judgment All ordered. concur.
so George George Dependents Goetz, Lucille Goetz Frank Deceased, (Claimants), v. J. D. Company, Josеph Goetz, Carson Liability Employers Employer, and Insurance Com Mutual (2d)W. 530. 40230. 206 S. pany, Insurer, Appellants. No. One,
Division December 1947. Marsalek, Carpenter Moser, Bearing-& Marsalek John appellants.
\126 *2 Enger respondents.
Carl A. Missouri from [531] a judgment VAN Workmen’s OSDOL, the circuit C. *3 Appeal court Commission affirming an awarding $8,124 award of and insurer compensation to George Joseph employment sustained Commission Goetz, an accident with J. claimants-respondents, found the deceased D. arising out of and Carson facts to be that Company the widow “employee, on resulting in his death in the course and minor son July 9, August 11, 1945.” evi competent by appellants, (1) there was It is contended injury employee sustained tending prove dence introduced (Section of his arising out of in the course accident (2) award was 3691); аnd R. Mo. R. S. A. sec. S. excessive in amount. relating provision said, constitutional
It is now in view of the agencies judicial action of administrative scope review of 1945), in the (Section V, Missouri, 22, Article Constitution of (“in cases in decision of an administrative tribunal review dé reviewing court is to hearing required law”) which a is record, there is whether, upon a consideratiоn of the whole termine finding re support competent and substantial evidence to —the evidence for judgment on the viewing court is not to substitute its reviewing court is au tribunal; that of the administrative but administrative tribunal question thorized to determine the —could result consid reasonably findings reached its made its have reviewing it; court has all and the eration of the evidence before overwhelming clearly contrary to the power “to set aside decisions Corporation, 355 Wagner Electric weight of Wood v. the evidence.” opinion expressed has 670, 197 W. 2d 647. This court now to Compensation Commission is award of the Workmen’s that the judgment a more'nearly and effect of regarded having the force “as . " Seabaugh’s Dependents *4 Code non-jury in a ease under the new Civil Mfg. Co., 1153, 200 S. W. Section v. Garver Lumber Missouri, p. 388. Missouri, Laws of (d), Code of Civil Company, Cause No. Implement and Auto also Brown v. Weber See Number (2d) 350, decided Division 1, 206 W. 40360, 357 Mo. Two, 10, 1947. November in St. Louis operates a furniture store appellant-employer ’ The claimants in connection with its business. employs collеctors
and by appellant-employer on a collector employed as was decedent duty make collections in the to It was April County em- "City “north of Delmar.”' The and Louis areas of-St. routes or territories and col- over their collectors went out ployer’s their, employer. They came into adjusted accounts* for and lеcted four-thirty quarter or about in the afternoon employer’s store reports. While other collectors used up” their “wrote five and duties, the of automobile performance in their automobiles their ’’ decedent, throughout period employ- claimants employee, coyer ment, territory was unfit for and he was trying use his employer’s genеral “afoot.” credit had manager, super- who vision employees, over all employee walking working knew was in his territory. The employee very evidence shows awas conscientious worker.
On July 9, 1945, morning left in as for work usual with the and folders used in his When he materials he work.. returned home afternoon, about he “limping two o’clock was quite badly”; at that time he told his he had wife turned his foot over on a loose bi’iek in the sidewalk “down around Jefferson and Dixon (Dickson).” quite The foot was and ankle swollen was discolored. He pain. was in Later the afternoon “back he went to the evening store” to his collections. That his foot “was swollen large as a grapefruit on the both and the ... sides' ankle аnd up tending the ankle was swollen.” There was evidence a pulmonary sprained show developed embolism from ankle causing employee’s August 11th. death
According testimony Fihn, secretary-treasurer to the of -Emmanuel employer, employer’s the deceased had called the office telephone 9th).He (deceased) onе-thirty (July “about get told (Fihn) me he a bottle of stopped in some little soda pop, coming and his ankle.” There was out he twisted objection' testimony. Fihn further interposed The witness to this (over objection by and insurer testified hearsay), (deceased) ground telephone “He that conversation was loose brick in side- said he his There was some had twisted ankle. the. suggested I walk, make calls. going he his but on instead of go to Dr. Harris.” going making Deceased calls, store if that ankle hurt later, around him “four- slightly foot.” He on one thirty quarter limped . . to five. objection, deceased’s testified, over Harris Doctors Stevens told the case, statements he history of the of his which statements July, morning of the 9th effect, physiciаns, in that “on the on the kind of stone stepped on some collections, he making while ’’ ankle. and turned his into a hole down slipped and his foot sidewalk husband’s, testify of her also allowed to The claimant-widow sprained which manner in he related conversation Commission, Workmen’s (The referee his ankle. law, dis- stated he had rulings of findings fact and making Lucille, еvidence given in part of the regarded “that Frank I. and Doctors Ji Harris employee, Goetz, widow *5 they gave tes- certain wherein attending physicians, Stevens, H. by made to statements them to have been purporting timony accident, in which to alleged statements employee after deceased he received .by manner and them described 130 testimony is injury,
bis alleged accidental for the reason that said past a evidence, competent being it a narration inadmissible therefore, be' part and,, a it gestae, event and not cannot res in this case comprise found ultimate facts found part a Work- effect, employer The insurer —in filed with —had (Section “Report of Accidеnt” men’s a Commission 26, 1945, July 3722), A. under date 3722 R. S. S. see. Mo. R. included, following in which were statements “7. alleged Date of 7-9-45. accident: . . . “8. east Ave. Louis. Place.- Dixon St. St. Jefferson (The “north of Delmar” intersection of and Dickson is Jefferson Louis) St. .
“13.
.
.
Is accident under the Law? Unascertained.
alleges
Employee
“23.
happened:
Describe in full how accident
.
.
sidewalk,
bricks, sprained
obstruction in
ankle.
.
loose
”
‘‘
.
.
alleged
30.
ankle.
injury: Employee
sprained
Describe
employer
A
deceased and
temporary agreement
by
executed
agreement
temporary
expressly stipulated
which it was
“that
this
pay
used as an admission
accept
and
compensation shall not be
$60.00,
against
payments,
total
liability.”
interest or of
Two
agreement,
made, pursuant
were
temporary
to the
in his lifetime.
disregarding- the
The Commission’s
was correct
referee
deceased) detailing
testimony
physicians (who
had treated
relating
past
deceased’s
to them
to the
circumstances
statements
in which
The statements
sprained.
manner
deceased’s ankle hаd been
existing condition,
not of
but were
physicians
were
a then
to.
testimony
hearsay
past
physicians’
recitals of
events.
Co.,
App.,
Mo.
58
inadmissible. Freese v. St. Louis Public Service
Ry.,
Co.,
Light, Heat & Power
758; Murphy
Joseph
W. 2d
v. St.
S.
994;
v.
Tel. Cable
App. 670,
Mo.
283 S. W.
Poumeroule
Postal
Wills v.
Co.,
533,
131 Fihn, mony employer’s secretary-treasurer, objec- admitted over tion, although competent to show employee reported the an accident, competent was not to show report. the truth of the Weiler v. Peerless Co., White Lime supra. It was not shown the statements of deceased to tial to render them admissible as his wife part Fihn had the res the gestae. spontaneity essen-
Relating to probative “Report elfect of of Aсcident” —the statements therein of employee what the “alleged” were evidence only of the employee fact that allegation. made the report not, was in our opinion, an verity admission of the employee facts the had alleged. employer making in report npt adopt did allegation of facts as the employer’s own, as did employer in making the report of accident in the ease of Tralle v. Chevrolet Motor 230 Co., 535, Mo. 92 App. S. W. 966; 2d report nor did the recite as facts that the happened accident a stated employee while the performing was stated (from work which facts it could reasonably be inferred employee “performing work scope within the employment”), his as did report in the case of Lumpkin Sheidley Realty Co., v. 227 Mo. 306, 53 App. S. W. 386; 2d nor did purport to state facts (although there manager, employer’s making report, upon relied employee him), what the had told as in the Floyd case of Y. Mfg. Co., 444, v. A. McDonald App. 226 Mo.
S. W. 2d 251. The report in the case, believe, probative instant we like effect is most that made the case of Becherer v. Curtiss-Wright Corporation, Mo. App., 740, 194 S. W. 2d and did an not amount admission of the truth of the facts stated as “alleged.”
Disregarding incompetent record, evidence contained in the and, meager; believe, the facts shown the whole record are we it is question indeed a close upon whether there is evidence sufficient reasonably injured which it can be determined the deceased employment. his accident in the course of The claimants had the showing injury, their suffered burden decedent the result of acci arising employment. Snorgrass out of and in the course of his dent Co., Cudahy Packing App. 226; 83 S. W. 2d v. Weiler Co., supra; v. Lime Freese v. St. Louis Public Peerless White Service injury has said “arises ‘out Co., supra. It been the em of’ is a causal connection ployment when there between the conditions required performed work is and the resulting under which the injury to an ‘in the and that an arises course injury; of’ period it occurs within the of his employment, when employment reasonably be, may reasonably while he is place where at a doing engaged something duties of fulfilling Wahlig Krenning-Schlapp Co., Grocer thereto.” incidental thought no supra. 29 W. But it is Section all-embracing “arising of and in the phrase, definition of out Every employment,” case in yet- course has been framed. of his volving phrase particular own facts “should be decided its *7 Leilich by аnd not to some formula.” and circumstances reference v. Co., S. W. 2d Wamhoff v. Motor Chevrolet W. In the instant Wagner Corp., 354 Mo. 190 S. Elec. certainly decedent had case, it could said the evidence shows the be ankle, a and under circumstances sprained sustained but where what work? with reference to his (testimony of Fihn of the statement
The evidence employee’s objection, telephone), tends to show deceased admitted without place he had coming ankle of some little where twisted his when out gone a We unfavorable claimants’ get to soda. believe inference to alone; employee, claim should be drawn from this circumstance the City territory comprising large worked of Louis and who areas St. County working duty through period lasted the whose tour of reasonably for day, might expected pause of to refreshment the day’s A an em during pause course work. sometime the of the. place satisfy ployee of to the needs within reasonable limits time refreshment, may for body drink, or even well of the for food or Compare reasonably as incidental to his work. Marko be considered al., App. Y. v. 210 N. witz National Headwear Co. et Acts, J., sec. 461. See also 71 Workmen’s Div. C. 413, pp. 671-2. itinerary his not in the course of deceased
It was shown whei'e sustained an accident with reference to a where it for em duty adjustment a an account to make collection or his Wahlig Krenning-Schlapp case of was shown in the ployer, as deceased, however, home work left his for Co., supra. The Grocer condition; good physical he took morning, apparently in the doing work, his he was work; used in his and folders materials may sprained ankle walking; a knew he was employer his walking; walking; during hours he man when is accidentally to a happen had employer sprained he his day to his working reported he of the afternoon, two o’clock at about to his home ankle; he returned badly ankle were and his foot and limping he was time at which The deceased at that time and discolored. swollen, painful badly day, yet since he had duty his tour completed not day’s reported he day’s, work; when his store to go in the was a limping; deceased work, manvconscientious compensable an inference opinion In our of his work. performance strong one; nevertheless, is not a facts these from drawn accident to hold the evidence constrained record, we are whole view award. sustain bе sufficient Having preceding in mind tbe summarized in paragraph, facts conjecture move' into the realm in order to infer the em- we must injured during ployee, worker, had, a when the hours conscientious working day, gone out of the course of his con- engaged pursuit in a adventure of his own. record of claimants’ positive tains no evidence character refutation July employer 9th decedent claimed he had claim. The knew ankle; July employer sprained reported and on 26th accident alleged. nor insurer made Neitlier early investigation alleged appellant-insurer accident. The investigation in his lifetime. An was made sent no one to see decedent investigator up “went and Dixon on insurer. The Jefferson and made a house-to-house canvass.” The three different occasions death, made occurred investigation was after the investigator thirty-two days alleged accident. The did after not anybody “who had seen the accident or even heard then or find see neighborhood people “very transit, of that аre of the accident.” *8 negative evidence, based on an in- they in and out.” Such move in and at a where vestigation may time those who so remote residents, weight. transient is of the accident were but little seen have contend the award stated, appellants was excessive in As computation compensation of is said Commission’s was аmount. It moneys paid on part employee “spe as because based erroneous by himon the use of his automobile entailed expenses” cial (g) 3710 R. S. Mo. R. Section S. A. See It employment. secretary-treasurer that in employer’s of the con the deceased, employee, towas receive a of stated tract salary “plus a car . . . wages allowance. He was amount ” . gasoline Now, and oil . pay the car and supply stated, had not used his shows, the deceased automo as evidence and, nevertheless, paid knew in his bile work—this computation Commission’s deceased amounts full appellants’ contention, unnecessary to determine it We find based. оf automobile had been ac the use expense in no inasmuch as employment. by his deceased tually entailed employment for the full engaged in the had not been employee The There in- evidence the accident. immediately preceding year earnings persons showing the.annual of of purpose for the troduced (or sаme location employment and in the same class of the same kind). (c), See Subsection same employments neighboring computed A. The Commission R. S. R. S. 3710 Section dividing the total by wage weekly average amount. quo- worked); multiplying (days $573.32, by 83 him, earned year) days ; in the (working 300 daily earnings) (average tient pro- then (weeks). 52 Commission dividing product-by eeedecl cоmpute the total death benefit under the provisions of (b), Subsection Section 3709 R. S. 1939, Mo. R. S. A. We believe stated. the Commission erred in using worked His only pertinent 86 days, average daily during which time he had earned evidence 83 working weekly the record shows the employee earnings were, therefore, less days computation. $573.32, than average earnings cоmputed upon a basis of working days. The award should be corrected amount determined a com- putation upon working days, and the the_basis case should be remanded for purpose; otherwise, judgment should af- firmed.
It is so Bradley, C., ordered. absent; Dalton, G., concurs. PER opinion by CURIAM: The foregoing Osdol, C., VAN is adopted opinion as the All judges court. concur. Myrtle Maggie Barlow Burtrum, ex rel. State Missouri Emory Barlow, Relators, C. R. Judge of the Cir Smith, E. cuit 24th Court Judicial Circuit ofthe State Missouri. (2d) No. 40473. 206 W. 558. Bane, en
Court December