*1 thereof, estate, of Frederick in the real interest now sixth chargeable another, only owing with the must balance owned augmented share in after same is Frederick life, "the widow for if in- proper estate that was held personal the same proper effort can located restored to the quiry estate. Benjamin Honaker F. rehearing purpose clearly explain has for its to more opinion
This equitable accounting concerning without impossibility to the data pointed same. All of the items that enter into matters out in opinion rehearing proper are original matters opinion equitable entering accounting among into ah heirs and should objections arguments without a-multitude into the case come hearing. other thereon which characterized the Such’ course will delay expense of the law’s of printing avoidance rehearing All records. Motion for denied. concur. voluminous City Grocery Company H. E. Reed, Respondent, v. Kansas Wholesale Casualty Appellants. Company, a nd Continental (2d) 156 S. W. 747. City Appeals.
Kansas Court November 1941. *2 Ray- Harry Walter Henry Shughart, Thompson, Jr., and A. P. M. appellants. mond Rogers respondent.
Whitson Compensation arose under the Workmen’s BOYER, C.—This ease judgment and insurer from appeal Law. The is findings affirming and the award made court of the circuit juris- in reference to There never issue the commission. injured in an commission; plaintiff nor that the diction of scope employment. On arising out of and in the accident review totally it admitted that the claimant was before commission was permanently disabled. hearings brought during all the here question contested^ computing the annual of claim- proper method of accident as a during preceding the ant law. be entitled under the to which would *3 a for traveling grocery company. Claimant was salesman “provided in agree that contract of sub- Counsel take over and travel a certain rural Reed to stance Mr. was' that. Kansas, doing in territory in the State of and that it was contem- plated pay would furnish an automobile and his own he expense include whatever expenses which would addition to traveling entailed, employer automobile and was fifty per him a at cent of profits, to allow net commission his and only payment employer; that was the to be made fifty Mr. Reed in per cent to be used the disbursement of words, in other expenses purpose; money for whatever it was his fit, job.” he pay provided, as he saw did There is but little any'way change modify this-agreement. would evidence that However, respects explained. it is in some It made is clear that claimant was 50 cent of profits net of em- upon the him ployer made as the sales consideration for his total whatever, pay He contract. his tq expense commission his out work was not to be eptailed, called to make acqount any. payment further on thereof. company, It was the of the after the custom end month, of each a showing render statement salesman the amount of his thereon, 'sales, profit the net total amount due the salesman, and sum, any for that check less amount for send which the salesman company. might be indebted to the addition to commissions thus claimant, during year preceding transmitted tq accident, a, of'$42.80 received a further sum as special bonus on sale, some to his commissions' made the which added sum $1722.91 as' his. year. gross plaimapt income' for the During total traveled many"‘thousands-of substantial, miles and incurred a amount of' expehse operation, and repair maintenance automobile, -and other expenses work, including purchase to his - drafts, stamps, meals, car, all depreciation estimated on which amounted, according evidence, testimony $606.65. His n further other sum, shows expense items of amounting to They $67.15. tires, tubes, cover the license cost state- tag, and repairs on car. Claimant had employed years been for a operating number of territory contiguous territory Abilene, Kansas,- and covered his in his automobile. He never report until made n early at which company time the -to all of its sent letters - - salesmen in desirability reference to necessity separating the- traveling expense from compensation. The letter stated:
“On account Security Act, necessary Social it becomes to, hereafter, pur us separate books, you-r weekly traveling expense your compensation, you paying so that will tax the % your compensation, traveling expense off, after this taken the law you your allows this course, deduction. Of will receive - - check, usual less the amount of tax.-” expense
After this letter with sheets others followed forms it was them; with letters prepare directions how to one of four suggested expense figured on a basis that the automobile tires, oil, per mile, covering insurance, gas, depreciation, cents wrecks, etc.- request, prepared Pursuant to this claimant and submitted travel
ing expense covering mileage sheet week. each Such sheets show the' day per mile, traveled each and the- cost thereof at four cents money meals, spent postage exchange. sum mary reports beginning such shown from the *4 June, including May, and month of amounts to $1389.89. employer and insurer that such contend automobile and other expenses
business the work of claimant should be' deducted from gross earnings weekly arriving average of claimant in at his wage as a upon compute basis him. compensation which dúé The claimant expenses oontefids that no such are deductible under the contract of employment, expenses and if of that nature are be all, considered at according the deduction should made the actual expenditures rather on reports expenses than the basis of the four cents for mile the car as employer. directed n The commission found that there should be no deduction whatever arriving at earnings claimant, the annual of the and its attitude following is shown paragraph quoted from its - findings:
“We further net employee’s profits year find just prior to his accident injuries herein, including and $42.80, bonus of $1722.91, and that represents this amount profits his net any expenses; deducting bonus, including without
sales, matters were by employee paid incurred such as.were employ- the contract under no- concern employer had with which they fact by employee, as they care taken long- as so ment wage weekly average $17,22.91 an gives were; that said sum period 300 week rate $20.00 compensation with the plus, $33.13 life.” thereafter for $8.28 n findings, above less according to the was made The award judgment of insurer. already employer or the commission. findings award of approved the Circuit Court parties as by-the respective case, one'.point in the stated There is-but ' follows: Com- Compensation Workmen’s Appellant says: “The Missouri automobile holding claimant’s erred mission the Circuit Court by the nature on him special expenses entailed expenses and other the annual computing be included employment of his . earnings' claimant.” . Com- Compensation says: Workmen’s
Respondent “The Missouri contract of correctly held,-in view the Court mission and Circuit nothing statutes, that in evidence and under the Missouri claimant, computing should be deducted from the commission earnings.” annual Missouri, 3710, Revised Statutes of parties point Both to Section (cid:127) (a) provisions and paragraphs .(g), applicable .1939, rely, provisions such parties which both but their construction of law is the complete portion at of this section of the variance. .The (cid:127) following: computing'the compensation provided for in this “The basis for chapter shall be follows: ‘as. “ (a) compensation computed of- the shall earnings salary, wages, annual injured person which received- as earnings continuously or employer if in the the same employment of the, . during preceding: the-injury. next
“(g) In'computing the annual shall be there board, rent, in-the reasonable value housing,'lodging-and'fuel re employer ceived from the a part of-the remuneration money, gratuities can and-the valhe of estimated customarily received the'employer,-in consent of the usual course persons business employer, other: than the but there shall fr-om wages not be helpers 'included sums which the *5 paid employee any by to the to Cover special expenses entailed on him ' employment.” nature
Appellants’ counsel, discriminating industry, present with list and authorities-upon they rely cases which their support position. It point claimed.that the exact raised.in this case was ever adjudged considered or in the the cases determination of
407 exactly in all case and we find that none of are like this cited, them respects, precisely material and circumstances similar in the facts affecting they all fours. -not rnn on Metaphorically, .do .decision. They are, however, logical construc indicative the reasonable .and Law to achieve placed upon Compensation tion the Workmen’s particular purpose,- including its the construction fundamental brought question applicability section and its statute to,the ease, and facts somewhat ones in this circumstances similar prophetic point opinion The question how be ruled. 336, 1000, of Maltz Jackoway-Katz Co., ease v. Mo. 82 S. W. Cap (2d) 909, 912, states: .... ‘‘ title, original design, emphasized The proclaimed 'the the provisions act, ameliorate, of the was to in the interest of the public workman and welfare, by.himself and the losses sustained dependents his from injuries accidental him in received proper course of work, contributing irrespective his of causal or fault ” part. his (b) Section 3702 provides compensation on the payable shall.be basis of 66 average employee, cent earnings of the 2/3 computed in, given, accordance with the rules Section 3710. Ac- cording design may described, the law as above it be said that compensation act; good allowed under the make Missouri is .to the employee earnings..of has which-he two-thirds. been award, deprived by injury, resulting and the is the- th.e loss. will It be seen quoted computing that under the above statute earnings annual any “there shall not be sums .included the employer any special expenses to cover ” by. entailed himon . employment. nature of the of Wahlig the case Co., v. Kremming-Schlapp Grocer Mo. 677, (2d) W. the claimant S. was-.a salesman collector. He used own. his in traveling territory automobile .his. over the operating earnings,, thereto out -of The compensation commission deducted the- cost of operating expense (cid:127) of the automobile- and based award earnings. claimant’s net on. , was affirmed the Circuit Supreme Cour-t. Court,.but the propriety of-arriving at claimant’s net (cid:127) stated, the manner not in reason, doubt, issue for the. no the award maximum amount allowable in event. In the case Ely of Russell Dry v. & Walker Co., Goods 332 Mo. 60 S. (2,d) 44, W. the claimant awas salesman. He had drawing account of $300 per month was'to receive away while .$597.58; sum of was-paid to. claimant home. expense. After death the employer paid widow a of $30 bonus contended that .these sums should be 0. included in the wages of deceased, wages and when so' exceeded per year $3600 and jurisdiction. commission was without *6 408 the include did but expenses the include The commission declined on Court The Circuit jurisdiction. without
bonus and held it jurisdiction declining the commission of the action appeal reversed wages. appeal On as be included was not to the bonus and held that among other Court, and the Circuit Supreme affirmed the Court the employer which the things that the sums stated by nature the himon expense special entailed was a expenses for his by statute. the of as defined employment (2d) W. 69 S. (Mo. App.), v. Gunn Stapleton of case together with truck employee’s 1104, the employer the hired affirming In the per hour. of personal $1.50 for the sum services day, the wage per average $5 finding an commission the court stated: day, em- the eight averaging hours per hour, $1.50 “At gas, oil, day for allowing per $2 per day, and, ployee $12 received upkeep day tires $2 additional repairs, an em- the for the services truck, $8 a balance of would leave finding argument that ployee. hardly merit in the We can see testimony the that under this part fact on the Commission by competent wage per day unsupported employee’s average $5of ’’ testimony. Co., 335 Dry Mo. Newman v. Goods Rice-Stix case injured employee salesman (2d) 73 S. W. own often used his using transportation, various methods . fares, bills, and other He hotel railroad or bus automobile expenses expenses performance of his work. Such these were who contended reimbursed to him wages expenses and when be included as so wages $3600, therefore and that the commission was would exceed excluding jurisdiction employees without whose under statute earnings annual exceed contention was overruled $3600. This commission, by Court, Supreme Court. Circuit The court stated:
“Appellants- argue by Newman when expenses incurred away calling Sedalia, him customers which were reimbursed employer, earnihgs. part are of his Re- considered spondents say expenses special those entailed nature paragraph (g) of deceased’s and under are not ' (cid:127) to be included. . . . opinion, case,
“In our on the facts of above re ferred to are not part earnings included as within Newman’s purview Paragraph (a) provides our statute. .Section that compensation computed earnings is to!be injured person salary, Evidently wages, earnings. received as ‘earnings’ wages’ meaning term following ‘salary, is used viz., particularly specified, same- nature as those salary or wages; is, remuneration the employee for his services.” c. [l. 269.] *7 And in further exposition of the law stated, the court 1. c. 270: The expressly statute provides that there shall not be included ‘wages of helpers any sums which the paid the employee to cover special expenses entailed on him nature the employment.’ paid so Sums an employee or for do not go to the support of him or dependents.” ... In the Heisey case of v. (Mo. Tide Water Company App.), Oil 92 S. (2d)W. 922, claimant was a distributer- oil company. He gasoline furnished his equipment. truck paid .own and was a gallon commission gasoline on each sold. commission found The gross that during the commission paid the acci- preceding the Heisey’s dent claimant $2879.41, operating amounted to and that , year, leaving were per per $103 $1236 month or a total a earning net annual $1643.41, adopted, as the basis which was. upon compute compensation. .which to was affirmed. (Mo.
In the 103 S. W. App..), v. Co. case of Toon Evans Coffee (2d) 533, the basis employed, a claimant salesman was drawing per with a. account profits of 50 cent commission of the net employee’s the ex per $45 week. The that commission found penses from the per amounted to that $16.20 week and deducted sum weekly wage. average amount he drew took difference as the and. the employee contract was construed mean pay his week, of which was per $45 was entitled to receive out he exceeded profits cent .of per event 50 traveling expenses approved The court difference. entitled to the week.,he was per $45 commission. procedure adopted, App. Co., Mo. Skelly Oil 232 v. the case of McClintock In a, man and was maintenance was (2d) 181, employee W. 114 S. addition In employment- of his the course the road in much on him for ex employer reimbursed month the salary $125 fare, hotel, meals, including railroad road, while on penses and New ruling Basing Russell its calls, stamps, etc. telephone said, cases, l. c. 185: court man this expenses en- special of these opinion .all “In our employment and should not nature of his on him tailed wage.-”,.. weekly average at arriving in that case- ease, mpra, and mentioned The Newman Illinois support of his respondent in the.only authorities cited opinion.are case held the court Newman argued that while position. It is in-the estimating earnings should be excluded special expenses facts, what yet to be case, inference drawn in that under .from -.expenses not such court would hold should that the said is commission out which .employee was paid where the deducted n n n expenses. n 410 ' Mining Coal Springfield case placed Reliance is'further In 135. 126 N. E. Commission, Ill. State Industrial Co. v. company- mining coal. a ton for plaintiff $6.18 case tools, required machines, materials furnished wages month. from each work, which was deducted price -of employment, contract view the' statute and Under Illinois tools, ma- expenses that the in that case held court Union dues payment of- terials, machinery, and the do not wages. We the-gross plaintiff's deducted by our approved adopted' or ruling in -that case was
find that Illinois ease; we that the do find Newman nor Supreme Court in the comparable to contract, and statute, facts case was ruled 'under case-. consideration ones W. 1378, 166 N. Iowa, Harkins, case of McKeller v. *8 by Illinois the adopted an opposite the court took view to the that where facts, held- practically court on the same state of special expenses to cover payment employee the employer made to employee -blacksmithing which were entailed powder and - by made for advancements so employment of his nature ijannot ruling earnings. The Iowa purposes be construed as in accord with the rationale of the Missouri cases. in this
Respondent special expenses claimant contends that by paid by paid not were employer, in fact but ease money fit. employee out which he entitled to use he saw was regard-to express be made to the this co'nténtion reference should way interpreted which claimant it Contract and the terms by testimony, payment the manner in shown his' which was required made. an contract claimant to furnish automobile pay expenses whatever in addition the automobile entailed, “that'the 50 cent Reed in was to be used Mr. expenses testimony -the disbursement of purpose.” for whatever of claimant deposition was that contained procured which was Abilene, Among questions Kansas. are the answers follow “Q. ing: you Did at understand time work the paid commenced to you here out the commissions you that were on this merchandise was your cover the expenses operating calling car and the trade your territory? A. peated and question Just what that?” was was re answered: “I ’expenses he did.” Thát the incurred paid claimant were in fact out of the commissions received from the employer there can -by be no doubt. As disclosed record of evidence this case- claimant had no other pay means out of which to expenses. We deem it immaterial whether company issued only one check covering gross amount commissions, or two separate checks, “special one earmarked expenses” and another for the balance of the commission. The result paid to the employee money sums of required to cover these special expenses entailed on employee-by the nature of the em- ployment. Under the terms of'the contract in this the employer only ease not engaged the personal service of the employee, may but be said- to have hired the use of an automobile in the conduct of the work of the employee. The contract is similar Stapleton to those in the Heisey cases above. The fair intendment- is employee would use diligence reasonable and energy territory to work in the assigned and to further such efforts the use of an expense automobile; which, as well as all other work, incidental to the (cid:127) be covered the commission due him. - What then were the annual of claimant? What was the renumeration to the for his services? gain What did he as the result of his work and what injury has he lost reason ? of his Expenses of the character described in case this cannot be included as - earnings. We think the way by single matter is resolved that expression case, supra, Newman (2d) 73 S. W. wherein the court said:
“Sums so an employee go support or for do him dependents.” or his
So in only we ease hold that amounted claimant’s earnings gain economic derived from his annual sum —the only which support. was available for That sum is the deprived disability. has been It account would anomaly required be an deprived to hold that he has been expelise prosecuting his work. His ended when ceased, privation, expense. than relief, work rather and there *9 en- claimant is compensation to which Therefore, computing the earnings upon net instead be titled, the should based estimate been the view heretofore gross commissions. Such has upon commission, evidenced by as adopted law method the the and the Toon, referred McClintock Wahlig, Stapleton, Heisey, cases the rule heretofore departure the above. No valid reason for to judicial in this case. applied approval apparent with is the support heretofore considered authorities than the ones Other engages render employer an individual to proposition that where an trucks, personal conjunction therewith to furnish service work, ex- the the horses, wagons things other with do or which'to things regarded special expenses entailed penses of other such are ’ by are not employee employment the upon the nature the J., 529; earnings p. 809, employee. in the the C. sec. included [71 366; v. 395, 143 N. E. App. Beuhner v. 81 Ind. Moore Bowman, (Mich. Ct.), 256 N. W. Sup. Fleischman Co. Yeast 589.] law construction of the There is-no room in for a liberal this ease liberal retaining to aid claimant in made. construction The award the by public to wel- required that “with a-view Section is the is ’’ law of the fare. not mean that strained construction This does an exorbitant permitting purpose of for the should be made :or allowed to clearly opposed be This would gain. solely private award exemplified the State as policy of public and the public the welfare here meant that is construction liberal compensation law. The considered will be a claimant applied so that law be is that the shall law should and, while the reasonably possible, scope if its within adminis- justly be also liberally end, it should to that construed employee. and the the equal equity to both tered with by special expenses uniformly hold Missouri cases The earnings ,be determining whether employer should excluded Ac- class. compensable him in are leave employee such as to had annual commissions theory the total cording if to claimant’s no We have injury compensable. not be $3600, would exceeded amount of commissions fact if such was the as to doubt that amount of provided the compensation, employee be entitled would reduce his total commissions sufficient to special for the special expenses If are to excluded or less. such $3600 they why logical just reason should claimant, there is no benefit of carry law should émployer. The -to the detriment the other. meaning on 'the one foot or whether the boot is same special expenses on claimant this case that all entailed We hold during preceding the by the nature of his gross from the commissions accident should deducted- amount be. during period the. basis which to received him deterT computing compen- purpose mine his annual this, but do entitled. commission did not sation is thereby compensation upon gross income of claimant based never cover losses -that compensation .the blanket of stretched contrary .spirit and letter sustained claimant. This was n Worlmjen’s .Compensation, support Law. The facts-do award, and the to warrant an award in the is insufficient evidence allowed, affirming Circuit Court erred it. report not be bound on the suggested employer. special expenses incurred definitely during question ascer-' period in should be- claimant tained.and the amount total thereof deducted from.his commissions. judgment should be reversed result The. co.urt the ease remanded with direction to reverse and remand' hearing commission further and determination not -case *10 this, opinion. inconsistent recommends. Commissioner-so wifh Sperry; C., concurs.
PER foregoing opinion C., CURIAM:—The adopted is Boyjür, opinion judgment -of the court. of the Circuit Court. reversed and the case'remanded with direction to and remand reverse the case to hearing the commission for further determination opinion. inconsistent with All concur.