*1 1108 years plaintiff; defendant that on Siebras was in the service of Lady Len-
discontinuing organized said service Siebras the defendant Company; nox that company engaged said in the manufacture also dye company; of hair sale that de- Siebras controlled manufacturing plaintiff’s fendants used formula sale methods selling product, acquired knowledge its of the Siebras ingredients forming parts plaintiff’s while essential formula occupying position prayed a of confidence and trust. Plaintiff enjoined using '(plaintiff’s) defendants be from its formula sale, methods of and that on the accounting an be taken issue of damages. general The was answer a denial. judgment permanently enjoined prayed
The defendants as damages presents petition. The issue reserved. The record presents questions question. only relating It no constitutional injunction. judgment granting permanent In this situation we are jurisdiction. question finality appellate without of the Ap of the judgment in this case is for the determination Court Crow, 272, 132; 171 71 S. peals. v. Mo. W. Ball v. Louis Cotton [St. 49, 798; 121 Co., App. 26, l. c. S. W. Press 141 Mo. Miller v. Conner, 582; App. 630, 636, 637, Burgan, l. 160 S. W. Irwin v. 325 Mo. c. 1017; Magee v. 309, (2d) 28 S. W. Mercantile-Commerce Bank Mo. (2d) 98 S. W. Company, 559, 339 Mo. & Trust 614.] to the St. Appeals. be transferred Louis Court of The case should All concur. It is so ordered.
Sylvia Inc., Corporation, Employer, O V. ’Dell Lost Trail, v. Casualty Insurer, Corporation, Company, New Amsterdam (2d) 289. Appellants. S. W. One,
Division December 1936. (cid:127) 1109 *2 Green, Henry <& appellants. Remmers for
Joseph respondent. N. Hassett for *3 in- by defendants, employer and C. This is HYDE, appeal an affirm- County judgment Court Iron surer, from the Circuit $7746 Commission of ing Compensation an.award of the Workmen’s Q’Dell. agree the. parties Both for the of Emmett C. death support only evidence issue is whether there substantial ac- from an O’Dell’s death finding of the commission that resulted The com- arising employment. of his and in the course cident out of gone to look finding O’Dell “had of fact also stated that mission’s squatter.” turkeys for and was shot over land raising corporation, in the business employer was a County turkeys. Reynolds which Employer land
selling owned employed there and was purpose. O’Dell lived used this *4 plus fifty a month cents January, 1933, salary “$75.00 a a house in He was “furnished turkey raised and sold.” for each everything . provisions, . . . he could live . . which to special He “had no truck. place,” and an automobile raise-on the hours, day and work,” supposed be on all but to hours “was No- manager O’Dell in necessary.” Employer’s visited night, if might on a turkeys put be vember, him that 1933, and informed “I I him before left' County. Iron He said: told of land in track County, . . the up in Iron . where him to I wanted come land, 5,000 and look acres of cut-over Egyptian Tie & Timber has birds there putting view of fifteen hundred land over with the that following up first ... I him to here the year. told come the squatters land following contact on this and week and the of the place him the show him where arrange them take over and to have was, place . . work . out a where we would and water springs the up go . . him following year. told to .1 locate these birds the there and make they squatters, friends with would thesé because very following valuable to year handling use the in these birds. . . . Spend thorough- all necessary the time over that land going ly.” manager authority The also said O’Dell to “had hire and pay for help, thought charge other ex- necessary, which he to and penses expense manager brought on account.” The said “ whiskey 0 ’Dell; great to you 'that in a . . many cases . could forming great friendships have a few very drinks with success making and contacts;” O’Dell but that he not Mr. “did instruct whiskey dispense to squatters.” take and it among those manager Sunday, 12th, The left on November O’Dell and was killed squatter Casteel, Charles a on County the Iron on land, the morn- ing of Wednesday, November 15th. to According defendant’s evi- dence, ’Dell gone went Tuesday afternoon, to the land on had over part Casteel, with of it had some springs, located and had made some arrangement day. to come back next O’Dell’s wife said that Tuesday living get people he had been out “to information about the ’’ get manager’s there and how to in there. She said that the instruc- 5,000 go tions “to look the . were . . to try and acres:over squatters make early friends with . . living go there . get day .and full report possible!” ... as as soon She night preceding further stated that “the the death her husband midnight;” dog left some time after shotgun that “he took a and his saddle;” always and a . and that . . “he also took a .38 Colt game carried that.” It shown a deputy held warden’s commission. upon testimony
Claimant Lorentz, relied of H.B. who accom- panied request 0 ’Dell morning at his to drive his car on the he was shot. frequently Lorentz said that he O’Dell. drove for He said they left his they house about two a. m. to Ironton drove “where glasses had a beer,” stayed sandwich had three hour they any “around an half.” He said that did not drink more; however, whiskey. O’Dell had a bottle Then drove place, Casteel’s reaching there about five o’clock. Lorentz did Viewing testimony standpoint not know Casteel. from the most findings, thereafter, favorable to commission’s the events as them, horn, ‘related were about as “Mr. O’Dell follows: sounded the lady door, said, and a came to Mr. O’Dell ‘We are here intended, said, little bit earlier than we but’ he ‘we would like ’ get fire; . . . it is a little cool. some house had about two living together, rooms, the the bedroom and the room kitchen got After we the house Mr. O’Dell said, *5 rear. ‘We going morning look the land this to over and kill some are as birds ‘Yes; said, right.’ the land.’ Mr. is . go we over Casteel a gave got Mr. Casteel drink. He up Mr. O’Dell then hadn’t out of yet. Up nothing ont bed to that time there taken .of had been and, girls, boys bottle. One of Mr. small and' one his Casteel’s in believe, larg'er . . . Mrs. went boy, I took a drink. Casteel I, get remember, Mr. Casteel breakfast, to well and kitchen as as girl sitting np at got np . . in the bed ont of bed. . The was said, hair,’ he ‘Gee, yon Mr. said, pretty that time and O’Dell have plait plait nothing plaits’ I ‘I bnt three and ‘can it?’ and he said. can kitchen hair; girl got hp Of her went in the taken then the hold and her; mother, her time I saw and then with and that was the last girl got np bed, youngest .one, and came over to the other ont Casteel and and another drink out of the bottle with Mr. stove taken myself.” Mr. O’Dell and ready. . . .
“Mr. was And for to Casteel said breakfast ns get breakfast, ‘No, I we ate breakfast and and said have done come Connley’s;’ Mr. Mr. Casteel went in' to eat breakfast and at gone very was short came back the room that time Everything . . friendly up were .' to the time of break we in. . . . Mr. seemed to think we did'not want to eat
fast. Casteel going . . Mr. him. '.We asked Casteel if he was to eat with ‘ ’ any said, No, going anything. I to So breakfast and he am not eat arguing got arguing. They Mr. Casteel and Mr. O’Dell to were ‘I said, birds. kill four who could kill the most Mr. Casteel can about shooting ‘I yon can birds.’ Then said, ont of fiv<3.’ Emmett beat: getting they whiskey. had another About that time it was drink daylight. Mr. into kitchen breakfast. Casteel went to eat some get to Emmett followed him in and I went and tried to him out and let Mr. eat his breakfast. When Mr. Casteel come Casteel gun. says ‘No words, out of the kitchen he had his these came He they got guns my can house because have raise man come into ’ . they put spot. . . going with and think me on the hell me are argue, Emmett O’Dell not to tried talk I told Mr. Casteel and They whiskey; drink out it and did. taken another them gun Mr. then taken Mr. sat his down. Casteel and Emmett Casteel nn argument . . Mr. started over. Casteel drink and the another ’ ‘ everything I . walked gun killed but man. said, This has -my- said, on I put hand his shoulder -and to Mr. Casteel' and over business; here we are here to look over ‘Now, dad, we came on ‘Yes, paying you said,- and I am Mr. O’Dell three land,’ and this ’ ‘ today, said, with us and Mr. Casteel That you go out dollars ’ right. is ‘ ‘ foot of bed gun down and he Mr. Casteel set his seemed preparing go, jumper and then he overall getting I over between him gun again, walked Mr: up picked on; go; said, getting ‘Come him, day- I I let’s told O’Dell, go look over said, this land and do ‘Let’s out and what light,’ I *6 1114 supposed
we are to got so Casteel, Mr. he mad and commenced do/ cussing using and profane language.I man told old he didn’t come here for no trouble, peaceably we come here and we go away to peaceably. wanted . . . Mr. O’Dell and went I—we door., out the and Mr. O’Dell me, ahead and ... .he picked up his twelve-gauge shotgun double-barrell hammerless and dog, called his pulled I and the door I out, behind asme went and supposed we that Mr. Casteel would come. . . . We had our backs to the door which out, we came and Mr. Casteel came to the pulled door and it open, said, your ‘I will and blow God damn brains out.’ At the same time Mr. O’Dell I and around, turned as and facing we turned each other house, grabbed towards I and twelve-gauge double-barrel hammerless from Emmett’s left hand with my I rig-ht. Mr. door, saw Casteel in the and at the same time was he raising gun, his and when Mr. O’Dell pulled saw it he his service- away pointed . '. . He it Casteel, from Mr. ‘.38.’ towards the ground, .not at all, the door at at the same I pass time made a get just gun, ahold Mr. enough Casteel’s but as I my had hand close gun that I could feel the then still and not move it he shot over my shoulder, past my head, stepped left and back in the house . . . After had fired at ’Dell up guu he asked his son to Casteel load get away.” and not' let me
Casteel’s version, as defendants, witness was that shot he protect O’Dell to Tuesday family. that, and his He said himself afternoon, highway O’’Dell arranged had him to meet on the nine-thirty land; morning the next valley to look over on the the east agreed pay that he had not anything; him but that he he would said bring dog gun they his and quail. and would kill some He said ‘‘ 0 ’Dell came his morning house the next three-thirty between and four o’clock with man he did not know. testified, He further as “My daughters laying bed; follows: two they got were hadn’t up; put pint whiskey and he pistol, between them and a and he feeling my daughter’s commenced pinched hair and he her got up got back she away him, and and from went to the kitchen, and girl, got kitchen; the next up she and in the by went ... got up got my time I had they passed and clothes on and the bottle. my daughter, .Marie, . . . He followed get him made there, you said, man, getting hard,’ out and he ‘Old are I guess ‘Yes,’ ‘I said, ‘No, said, you I not.’ think are.’ said, He tough,’ gun hand; Brookey ‘I am and he had his gun had a hand.They pistols. in his . . . said, were He ‘Old said, ‘I man, you get said, he- am needn’t ‘I will hard/ bad/ him, spot.’ ‘No, I I you told .do.that.’ I take talked wouldn.’t get go get go tried to- him to his car to him and home. I that; carrying my place told him I didn’t no on at want such like h¿ nothing showing me say much'more, kept but didn’t giin and . out of what do. . I taken two little drinks he would said, go. . He the bottle. .1 asked him to on home. ... I tongh I I am ain’t man, place; ‘Old was never riin from a out I leaving.’ I him me. took the arm he broke loose from *7 np took get him to in it he took the' car door and told' him to and He gun going I the house. his and to' shoot’ me and ran for was you,’ pistol. going ‘I am kill and up said, to took He gun grabbed my I and when he said that back in door and run the away I it gun shot him. He had his on me knocked and shot and a foot a half above me in the weatherboard.” about transcript testimony of also offered evidence the the Defendants Lorentz, inquest. at and other members taken the coroner’s Casteel family testimony of there. The Casteel’s testified Casteels’ sub- hearing stantially testimony at on the corroborated the of Casteel the compensation prosecuting attorney that he filed claim. The testified charges thought testimony-before coroner showed no because he the the “self-defense,” the make “reached conclusion that'he couldn’t ’’ pistol, It not 0 fired from disputed a case. was ’Dell one shot his shotgun. According his to one from and that Casteel fired shot Lorentz, said, inquest, Casteel shot first. son at the that Casteel’s shooting his “grabbed” keep Lorentz him from father. Casteel to to kill. penitentiary a term in for assault with intent had served the purposes went to house for of his If O’Dell either Casteel’s business, temporarily stepped own, being employer’s or on there his purely accomplish personal work of his employer aside from the to quarrel'arose, not be en claimants would purpose out which the apparent that compensation. We think is to an award it titled true, come out Casteel’s if was O’Dell did not to Casteel’s version three-thirty any employer, on his but went house business of a. m. own; purposes solely quarrel, his and that the which re death, by in his commenced him in the furtherance of his sulted was relation what own and desires and had no or connection inclinations Beem v. H. D. Lee Mercantile employer’s ever with his affairs. [See cited; 114, (2d) 441, 337 85 W. ex rel. Co., Mo. S. and cases State W. (2d) 801; Trimble, 760, 328 41 S. McMain v. Gosselin v. Mo. Mullally Co., 43; 85 40, (2d) 337 Mo. S. W. & Sons Const. Connor 582, 98 Langenberg Co., (2d) 339 S. W. Bros. Grain Mo. v. 645.] accept not to that It However, the commission did have version. right finding, make to, evidently did to its reach the con the had Lorentz; as the facts were stated went clusion that employer’s solely business. From his house testi to Casteel’s 0 agressor, find ’Dell not to was mony, it would be reasonable not know quarrel, to did that Casteel would not intend start did may that, testimony even from his as be conceded him. It assault 1116 might
to what was done, said and possible opposite be two reach as to purposes; conclnsions 0’Dell’s of improper intentions and one purposes own, of his temporarily stepped from, for which he aside activity and was shot, engaged in, not at time he was related to business; employer’s attempt his primarily carry one an out the he was perform employer’s mission directed to his advance interests, to which his and conduct conversation as to irrelevant mat- merely If ters incidental. the latter was purpose, he would acting employment, though within the course even he chose wrong methods to it, sought, do failed to attain result him authority because his with “duties invested to make the de- cision for rel. defendant’’ as to methods. State Gosselin ex [See Trimble, 768, 41 760, (2d) 801; v. 328 Mo. S. W. Haehl v. Wabash Co., question Railroad Mo. S. W. If the was one 737.] make facts, they for the trier of the could this latter inference if it considering was a one make reasonable after all the evidence. “Whether the act was or was not employ- such as be within the scope ordinarily ment’s jury’s one fact for the determination. *8 departure But if from employer’s the the of business is a marked and decided question may character the decision of the be within the province of court.” ex rel. Trimble, the Gosselin v. supra.] [State question We hold in that this this case was for a of trier the facts. We also that of employer’s pur- hold the inference intent serve his inference, although pose proper was a reasonable and not the neces- sary only inference, make, or for them to and we must assume that findings did it the commission make and did base its on it. [Phillips Air Co., 587, (2d) 551; v. 337 Mo. 85 S. Reduction Sales W. State Haid, 390, (2d) 869; ex rel. v. 333 Mo. 62 W. Probst S. State ex rel. Buttiger Haid, 1030, (2d) 330 51 v. S. W. Mo. 1008.] purpose Compensation It the the Act “to was of extend the employees . . protection any of law . at place the to all while services, act, any where their or task or mission which forms a neces sary part may reasonably services, require of their them be.” 325 Co., 677, v. 29 [Wahlig Krennig-Schlapp Grocer Mo. S. W. (2d) 128; Co,, 328 v. Motor Mo. Leilich Chevrolet S. W. (2d) 601; Co., 114, 85 Beem v. H. D. Lee Mercantile 337 Mo. S. (2d) disputed It go W. is not that O’Dell was instructed to 441.] certainly of land. was to this tract There substantial evidence that squatters thereon, try his instructions were to contact the to make them, good cooperation. their will friends with and to obtain inference that one is not even an unreasonable of the methods It con was, at least on some occasions and under templated some circum them, as a approach a drink with some of method of stances, to take objectives. entirely Nor is it of these unreason ing the attainment might employer knew that the to believe some able
11TT might be squatters some among and that there turbulent characters Certainly thought if. O’Dell dealing in thus with them. hazard to show him over the land better could induce Casteel quail shooting gain good by liquor of the. inducement of will might liquor enjoyed have the way, on the the that he fact also quail solely his trip make the whole sport not hunting the ..would of methods, proper is given Since O’Dell was discretion as own. the have advanced whether he said and did could
to consider what doing of view, and, in the character the object employer had in so evidence, should also be dealing with, as shown the man was considered. house, going clearly be within purposes, in to Casteel’s could
His employ- determining trip is in what the course one’s the test for namely: employee case, “If the work the ment, the McMain stated travel, employment, of his necessity is the course creates the for though serving purpose time some his own. he is the same . part creating the neces- however, the work had no If, has though travel, gone sity journey if the would have forward dropped, would have canceled errand had been been business though was purpose, errand upon private of the business failure risk.” His undone, personal personal, is then the travel laid house, come within the test conduct, at Casteel’s could likewise cited, Trimble, supra, ex rel. v. and cases State Gosselin down during of the serv- namely: act “The fact that the was done time conclusive, nor the motive the servant employment, is not ant’s employment question by virtue of the is, was the act done so. Railroad, business? v. master’s furtherance [Hinkle general being and whose ‘Whose done S. W. business 227.] Express Co., 266 Mo. being v. purposes promoted?’ were [Maniaci acting of his 633, 182 W. in the line em- S. Was servant 981.] seeking ployment, accomplish about his -master’s business and *9 question employer purpose?” his master’s The is not whether his approved have his but whether came within the methods, would may given him. discretion O’Dell have been too in vehement boasting ability, may of shooting Casteel his have been too antagonistic argument matters, this and his about other may gone whiskey employer have further his in- use than Nevertheless, conclusively say appears, canot that it tended. we un- claimant, view of evidence most der the the favorable that he was attempting fight; expected or to start that he what he said did so; doing any'more carrying that was cause Casteel to do or than mission, as to how his squat- his own ideas to make friends with out them, accomplished. out about the land from be ters find should words, question for In the trier of facts other as to misinterpreted he was victim ill-chosen and whether methods accomplishing for employer’s fatal purpose, or as to whether the quarrel pur was the attempt accomplish result of an an improper pose of his own. generally, Keithley assault v. Stone cases see [For & Engineering Corporation, Webster App. 1122, Mo. 49 S. W. (2d) 296, cited; and cases Compensation, Schneider Workmen’s 293-294, secs. and supplements Our conclusion is that the thereto.] together evidence, facts shown claimant’s in with the reasonable might claimant, ferences drawn therefrom to the favorable support finding substantial constituted evidence to com mission O’Dell died from an accident that arose out employment. the course of his judgment Ferguson Bradley, CG., is affirmed.
The concur. PER foregoing opinion by Hvdb, adopted CURIAM: The C., is opinion judges court. All as the concur.. Majors Pope
Walter L. Malone, Appellant. Annie v. M. Turnbo (2d) 100 S. W. 300. One,
Division December 1936. Lawrence McDaniel and F. F. Williams for appellant. Feigenbaum respondent. J. for M.
PER alleged CURIAM: Action to con- recover breach of a employment. petition tract of two first counts. The count *10 damages $100,000 19, asks the sum of with from October interest alleged'wrongful discharge. count seeks re- second