*1 971 special findings requesting appellant by Respondents contend statute, as a mat- conceded conclusions law of fact and of fact, of they a ease to be decided one ter law that had made of every essential to establish and admitted was evidence sufficient Dist. v. River Protection case, their Labaddie Bottoms of element 719(6). And (2d) 713, W. Randall, 867, 884(7), 156 S. exceptions to failure to file appellant’s further assert that based findings of law separate court’s of fact and conclusions special gave findings verdict the force and effect of thereon, those agreed law oh those facts were ease; if the conclusions of v. be affirmed. Leavitt correct, judgment the order must below 169-170, 385, (1). 387 Taylor, 163 63 S. W. Mo. judgment, we findings

If fact here had been embodied of authority Wisdom v. agree respondents’ contention on of would 84-5(4, (2d) 453-4-5. App. 76, 5, 6), 167 S. W. Keithley, Mo. placed exceptions where

But were not: bill being That belonged, any exceptions saved. they properly but without ex rel. Brick & being true, banc decision of State United under the 805-7, 160, 166-8(II), Mo. 95 S. W. Wright, Tile Co. v. findings appellant fact not available to special trial court’s are purpose inquiring whether find appeal, on this even for the those - However., it ings judgment is our support the order and entered. Shaver, principal of Wente ruling case recognizes negligence institution of the action counted

supra, may and we purpose; frauds, to toll the defeat statute unwilling here, facts be to disturb would, pass-upon if called to those findings order of the trial court. All Accordingly judgment affirmed. concur. Deceased, Em V. Widow Scharlott, Alfred

Clara Empire Bottling Company, Employer, and ployee, v. New Insurer, Appel Corporation, Ocean Accident and Guarantee lants. No. 39469. 192 W. 853. S. Two, February 11,

Division 1946.

Rehearing Denied, March *2 Joseph appellants. N. Hassett and Ernest E. Baker for Flanagan Piening respondents. Hay H. ds WESTHUES, following is C. The a statement of this case in appellants’ found brief: compensation “This grows out of claim for filed before the Missouri Workmen Compensation !s Commission Clara Schar- widow of .lott, seeking Alfred’ Y. deceased, award of *3 compensation on account of of The Mis- the death her husband.

souri Compensation Workmen’s in Commission made an award the sum $8,350.00, City and of of on to the Circuit Court of the Louis, Compensation St. award of the Missouri the Workmen’s Com- mission was affirmed. husband, Alfred

“Claimant’s Y. the employer delivering as a driver-salesman, selling and of eases soda water to death, July 16th, retail trade at his the of and on 1943. The driver-salesmen permitted by employer were to obtain helper trucks, the services of a on if their so desired. These helpers were paid the driver-salesmen and were the control under paid by employer the driver-salesmen, of and were not and were employer. under the control of the “On the date in Y. question, Alfred Scharlott had obtained the day of services Daniel on helper Stevens his truck. On that employed by employer, washing David Lee Brooks bottles was. cleaning bottling up plant. and room of their Daniel Stevens years age, years Lee Brooks fifteen of and David was thirteen of employer age, although represented he had to the that he was four- years age. teen of reporting back last,driver

“It was custom that the to the em- day, business, finishing after work for ployer’s place would as- garage. July On placing 16th, 1943, Alfred sist trucks finishing last to report Y. Scharlott driver-salesman back after his truck day’s Bottling Department' work. He drove into the his day’s receipts. into the office to cheek in his There and went yard away which employer’s put of the trucks had to be two night. got Brooks into for the David Lee the cab &nd sat down Alfred Y. Scharlott and trucks, one of and Daniel Stevens came these Bottling Room and towards walked truck in which got' right- into sitting. Daniel Stevens 'Lee Brooks David seat, the truck and sat and'David of the cab of hand side seat, Alfred and in the middle of left Lee Brooks was running on the left-hand side of got board Y. onto the Scharlott Lee Brooks to over then told David Mr. Scharlott truck. garage. The Brooks truck into the and drive the steering wheel drive, how to and in- not know that he did told Mr. Scharlott boy truck, and Mr.. he was Mr. Scharlott that afraid formed him to turn telling do, him what to and told kept Scharlott boy kept pedals, and the Brooks of the gas put his foot on some into the drive the truck 'telling try him afraid to that he was the truck boy his foot on starter and garage. put moving twenty was about it Before the truck started started forward. garage. When the truck garage facing towards feet from the eight garage, of the the Stevens feet from the door seven or was abo.ut jumped hit, boy going see it was testified he could The truck continued to move ran the office. the truck cab and towards against V. Scharlott the wall pinned Alfred towards the injuries from which he later garage, causing him to sustain of the nothing prevented have Mr. Scharlott that would died. There was him running pinned before the truck off the board stepping from garage. against the wall away, Stanley help put trucks asked the deceased

“Mr. truck was in the other and at the time of the accident Mr. twenty feet from the backing away. it was a of about He distance the con- put away, and could not hear Mr. was to truck Scharlott boy in the and the Brooks cab Mr. Scharlott versation between question. the truck *4 specific by his em- given been instructions’ “Mr. Scharlott had ’’ except himself. no to the truck

ployer that one else was drive We to statement few of our own. desire to add above comments the specific with reference to the paragraph, The assertion in the last is except Scharlott, drive the truck that no one was to instruction only incomplete. evidence on this quote We from record by Kraus, manager bottling given of the com- point, as Edward A. pany: they they giVen specific instructions at the time

“Yes, sir, were employed except that was to drive the truck them- were no one else morning selves, from the time returned left evening.” answer, when “they”, The witness in his he used the word referring of which Scharlott was We also to four salesmen one. boys, both of the Daniel Stevens and Lee desire to add that David helping the salesmen their routes also Brooks, in addition to on times, by plant. They paid various at the were performed duties at premises bottling company these duties while company. Stanley, were of the defendant Mr. under the control who away, charge put had asked the to trucks was in of the deceased plant at the time of the accident. by appellants

The sole contention made on this is that the death of arise Scharlott did not out of and course of his employment. theory appellants This contention of is based on the specifically Scharlott had instructed that been no one else permitted employed should be truck he operate; to drive the to by that at time of the accident violated this instruction he urging David to Appellants Lee Brooks drive the truck. assert that inducing boy “his by was caused his act in the Brooks to drive running truck stood'upon while he board.” We do think this last statement accurate. Brooks testified that to he was afraid drive and did not intend to do so. Note his evidence:

“Q. Well, Then Mr. Al happened? what A. came and stood sitting on the I running opened board and the door and was on the righthand steering get side and he to under the wheel and told me him garage truck I I didn’t know how to into the so told kept telling drive I him I told was afraid and me what gas my work, put told me to turn on the foot on some of pedals something telling him I kept or so I was ‘skeered’ so Mr. factory got ready go I wanted up to close garage put when Stevens on the starter. foot ‘‘Q. things directing you doing Now what to those as was were you going,to do? A. I was

you, going eventually what were out, . . . boy other “Q. you get out of the truck this And before could right? is jumped forward, and the truck stepped on starter A. Yes, sir.” right-hand side, boy, The who the. yét anything, or he is the one who

had not been instructed told to do truck to move forward. stepped on the starter and caused'the ac- given version evidence Stevens corroborates the above cident. drivers appellants’ given

If to the interpretation of the instructions charge' at plant used, Stanley, be then Mr. who was he drove accident, instructions, because violated the drivers. He also belonged a truck into of the to one belonged to garage that put instructed Scharlott a truck in the. meant, that interpret

another we the instructions driver. As routes with on their company while the drivers *5 anyone trucks. operate merchandise should not let else he said by that instructions, manager, to read. Note testified time left in no was trucks “from the one else to drive the evening.” not include That did morning returned in the engaged at the time the work that Scharlott 976 that Scharlott even if we concede vio- However, occurred.

accident to Brooks persuade by attempting to his instructions lated cause of the accident. proximate was not the truck, that direct he was “skeered” because he about that to Brooks testified was to was Scharlott stepped on starter. instructed and that he received at the time and therefore the truck into drive him be and was required to his duties place his he1was at--a a not assigned Negligence him. attempting perform to a task to finding of the are that this case. We defense by an was caused death that Scharlott’s Compensation Commission was employment his arising of and in the course accident evidence. supported substantial theory. support of their followng cases Appellants cited them dis an examination of carefully and each case We have read time he case, each at the sustained injured employee in closes that the him be required place at a where his duties injury, his was not assigned him. The cases any task performing time was at the W. Co., 155 S. Dry Cleaning Story Laundry & v. are: Ricketts cited & v. Seaman Appeals); Smith (Kansas City (2d) 536, 539 Court Cassidy 435; (2d) 127 W. Co., 559, Mo. S. Works 344 Schuske Metal Liberty Kasper 75; v. (2d) 32 Inc., Mo. S. W. Eternit, v. 326 (Mo. Miliata v. Jack Rab Co., App.); 1022 Foundry (2d) 54 S. W. v. St. Louis (Mo. App.); Probst (2d)W. Candy Co., bit 54 S. Tarlton, Bise v. (Mo. App.); 501 (2d) & Box 52 Co., Basket S. W. Merc. Levis-Zukoski (Mo. App.); Smith v. 35 S. W. (Mo. App.); Morris Co., 743, 14 S. W. App. (Ill.). To illustrate N. Commission, 128 E. & Co. v. Industrial In to a few. to refer we desire general run of these cases stairway a when fell on injured was she employee Ricketts case gone to her see returning mission. She personal while from a floor. It mother, plant, on another who also at of em in the course arise out of and held that the did not accident Co., the Metal Works In v. & Schuske ployment. Smith Seaman went inspected it and assigned repair job. He then employee was to a met with an this change while on mission his clothes and home his sustained the time It was held that was not at accident. employer. In the case his injury engaged any duties the, came to his death employee Co., Merc. Smith Levis-Zukoski was no found that falling The court elevator shaft. down accident, per Smith, at the time of to show that evidence therefore -there duties and forming any work connected his accident arose out support finding was no evidence a cited of about cases are employment. The other and in the course of same tenure. definitely deceased showed at bar the In case evidence within task at perform injury attempting of *6 justified employment. Compensation Commission was of his scope unexpected if been for of Stevens finding that it had not action in and not have stepping on the starter the accident would has held a mere violation of rule This a does occurred. court recovery necessarily compensation In defeat law. not Mfg. Airplane Co., S. W. Crutcher Curtiss-Robertson inspector planes. Crutcher was He lost l. c. riding when which He in plane

his life a he was had crashed. plane signing inspection spected was therein cards when and hangar. pilot plane a started the to take it a It was contended that against perform and that it plane Crutcher no duties it taxied or being the rules for him ride therein while was hangar. to that said: flown This court answer contention consequence “We think whether he it is of little understood hangar. to be flown to plane about to be taxied or about might go In it matters that he it, either case he elected to negligent been performance have disobedient if services or part employed reasonably required which do so a might of such services. substantial And evidence that such plane have been the when Damon, case because Dr. asked whether storage hangar is it factory ever transferred from the might completely has been it inspected, replied: generally; ‘Not against it, working ” a shop occurred. There is order have but when under rather crowded have might happened.’ conditions it

From what judgment we have it tfhe said follows that the trial affirming Compensation court award of the must be Commission CC., hereby Bohling Barrett, affirmed. concur. PER C., is foregoing opinion CURIAM:—The Westhues,

adopted judges as on the court. All concur.

Joseph Wagner, Appellant, O. No. 39707. v. Richard Mederacke. S. W. 865. Two,

Division March