*1 He could sue qumivm contract as he did and recover in m&rwit, if pleadings justified evidence had it. But issue is not and was not case.
Murphy’s paid firm Leahy, a fee firm to the & Saunders Walther for services rendered the latter as stated. Whether that fee percentage was on a certain, basis or a fee does the record disclose, proportion nor is it shown what fee -collected by Murphy’s Leahy’s firm went to firm. Whatever it was the latter firm parties are not proceeding, and are not affected by it. plaintiff,
We hold that administrator of estate partnership Deatherage Creason, accounting & is entitled to an with the Deatherage, adjudge W. executor, defendant N. the latter Deatherage pay plaintiff be ordered to all F. fees collected B. Deatherage Spiller firm & his lifetime for the Creason in the cases, addition, Creason, less part and, of the same appropriated by Deatherage, like amount as interest with the sums were collected. time Creason, Deatherage partnership
We also that the estate of & hold accounting through plaintiff administrator, entitled to an Murphy Harding, Stinson, & collected with defendants of the fees after, of B. as indicated Deatherage, said defendants the death F. above. judgment sustaining the trial court motions the cause is remanded trial is affirmed
new directions to proceed accordance with the court trial conclusions stated concurs; J., Walker, J., Blair, P. above. absent. Company Krenning-Schlapp Wahlig
Maude L. Grocer v. Metropolitan Casualty Appellants. Company, Insurance (2d) S. W. 128. Two,
Division June 1930. *2 Voyles Case, & appellants. Stemmier respondent. Oliver A. Fabick for *3 widow U, 1928, Maude
HENWOOD, April O.- On L. Wahlig, George Compensation Wahlig, A. filed Workmen’s Com- against Krenning-Schlapp mission her for death benefits claim Company, deceased, Metropolitan Grocer hearing A Casualty Company, the insurer. before the com- Insurance expenses, $150 in a final for burial mission resulted award for 474.3 $9,48'6, benefit of sum of week total death *4 appeal took to the Circuit employer weeks. The insurer an and judgment was entered Louis, City Court of of St. where the commission, findings of and affirming and final award the the insurer have employer appealed and judgment that the court. commission, thereto, filed with the and the answer The claim alleged it case. In the claim pleadings in the constitute the by ac- husband was caused the claimant’s death of that the employment. In his 'in the course of arising and out of cident deny insurer that arose the accident and employer the their answer employment of the deceased. course of out and of August 17, that, court recites on judgment the circuit of The n 1928,the following following findings and the commission made final award: A. Louis, George Missouri, at' St. on December “That by on December sustained him of result Wahlig died as the struck 12, 1927, Louis, in when was Missouri, St. in an he accident by train; Krenning- that, employment at he was in of time, Schlapp collector; that, at the Company Grocer salesman as and accident, engaged employment; time of in that was he his that, employment; accident of in arose out and the course of his employer before and accident, at the of said time and had accept Compensation Act; elected to the Workmen’s that employee’s average wages weekly $47.43; that, time of were at the Wahlig the accident and Maude L. was his widow and was death, $20 dependent; a total is due in- the sum of $9,486; week commission weeks, for 474.3 or a of total said compensation for August 17, on said 1928, found and awarded $150 against employer said and insurer in the sum of Wahlig, for burial L. expenses, and favor of Maude widow, until per week, weeks, sum of for 474.3 her Wahlig, prior re-marriage, with remainder death or to Ardella each said appear; payments as her interest hereafter of subject begin 13, 1927, payable as of and be and December Compen- provided in to modification and review as the Workmen’s sation Act.” hearing at
The evidence claimant before offered commission, substance, as follows: is, thirty-six
George Wahlig years age of A. was at the time L. death, and, hearing, wife, his Maude his at the time Ardella Wahlig, thirty-five years age, and daughter, was their They years age. Street Wahlig, lived Dover was eleven Krenning- Wahlig city employed by St. and Louis, Sehlapp City..of Louis a sales Company of the St. Grocer fif employed man and had so about collector. He been city years. territory worked in which he included the teen County, Field, Scott Illinois. In that Louis, St. St. Louis cus prospective territory on customer or was free to call he except regular em customers his employer, tomer of his routes permitted he was his ployer’s salesmen, and choose other covering territory. no had transportation his He means worked as late as sometimes seven regular working hours evening. employer His knew that he eight- o’clock 5 -.15 Before leav than afternoon. later called customers morning frequently solicited orders he ing his home employer of his to the office telephone reported the same traveling. over automobile used own telephone or mail. He expenses out incident thereto operating territory preferred its salesmen use earnings. His *5 thirty-six auto of salesmen used thirty-three its automobiles, and Flyer 6846 Avenue conducted a store at Gould, who mobiles. Oscar regular Wahlig’s of em customer city Louis, was St. the of 682
ployer, Wahlig’s Gould 5:30 and it custom call on about was to Monday every Wahlig tele afternoon. talked to Gould over the arranged phone Monday, morning of December Saturday day. to call at On Gould’s store the afternoon of that previous Wahlig week, Pavitt, the instructed Mr. secre the Monday tary employer, on and treasurer of his to see Gould Wahlig payment account. left his collect a on Gould’s home 5:15 in morning Monday, 12, 1927, December and about driving westwardly day, of that while Delor afternoon Railroad Com Missouri Pacific Street, across the tracks city Louis, struck of St. his automobile was pany, by him passenger northbound train. The received following day. He had collision resulted in his death on the traveling day accident, at Gould’s but was called store on the acci occurred. After in that direction at the time the accident used books, price paraphernalia books and other dent “his order custom, selling” were found his automobile. It was his parapher “other duty,” keep when these books and not “on thoroughfare” “logical nalia” at his Delor is a home. Street “always go Wahlig going store, and use in west to Gould’s did way.” south,” rail “5000 Delor Street and crosses the store, tracks of Grand Boulevard. Gould’s road three blocks west Louis, Flyer Avenue, 6846 at is in southwest section of St. Wahlig’s home, “6800 612 Dover 3500- west and about south.” “5800 Boule Street, is south” and about four blocks east Grand year gross earnings preceding next Wahlig’s during vard. expenses operating of his automobile $2895.24. were leaving1 net month, him $420 amounted or total of (cid:127)earnings of $2475.24. employer nor insurer.
No evidence was offered support does not Appellants I. evidence contend that (which Ending the accident “that of the commission Wahlig’s death) out of and arose resulted meaning of employment,” within the course Compensation Act. (c) of our Workmen’s Section Section have both “If that: provides Section be act, employer shall of this provisions accept the elected to compensation “under furnish negligence, irrespective of liable or death of the em- personal injury of this act provisions employ- in the course arising out by accident ployee liability therefor all other -released and shall ment, person.” other employee [Laws whatsoever, whether to italics.) (Our 1927, p. n say: “Without other- (c) law framers of the Section In abridged interpretation meaning affecting either wise *6 'personal clause, injuries arising out of and in the course of such (cid:127)employment,’ hereby it is declared not to cover workmen except while engaged in, or about premises where their duties are being performed, or where their reguire services presence their part as a such (Our italics.) p. services[Laws of In determining question presented, thus we upon, are called for the time, first to construe the vital provisions most of our comparatively compensation naturally new for law, look, we guidance, to jurisdictions compensation the decisions in other whose provisions. laws contain the same or similar quite uniformly injury It has been held that an arises “out of” employment causal connection between when there is a required performed and to be conditions the work is under which employee arises an injury to resulting and that an injury; it occurs within when employment “in the course his of” be, may reasonably he place where period employment, of his at employment of reasonably fulfilling duties and while he is engaged something or doing incidental. thereto. Kiser on [See Compensation Acts, (40 Workmen’s Secs. follow- Cyc., ing p. 2880), think and cases We we should construe so cited.] compensation law, 3 of our which these terms as used Section says compensation furnish employer that shall be liable to “the arising employee by for of personal, injury or death we do not employment.” And out course of of limits (e)7 Section agree in the contention appellants injured in or may be employees who law to protection used language in Sec- The emiployer. premises their about any 7(e) indicate that such tion intended does limitation was interpreted. declaring 7(c) By so in Section it cannot be injuries arising their employees and in the out course injuries 3, shall for in Section cover employment, provided as premises their engaged where in, or about employees “while require their services being or their performed, are where duties opin- Legislature, in our services,” the presence part of such protection ion, intended- to extend the of the law all employees any premises they may while in or engaged about where performance duties, place any their while at where their services, any part or mission act, necessary task which forms require be. may their them to That services, reasonably Legislature em- provide intended to ployees may which places occur other than in or about premises employer of their is further Indicated by Section says, among that, things, other person where a third injury liable for or death employee, of an employer shall subrogated right employee dependents .be. to. against such third person, recovery and that against such third paid by person, “'in excess employer,” dependents, shall be to the or his “any
treated as com- payment on installments advance future pensation.” (Our italics.) large majority our Britain sister courts of and a Great out consistently held street accidents arise states have *7 following quotations employment. The one’s and course of of question: illuminating on this very are to pass business has “If of his master’s in course a servant the or on a street, bicycle, it on foot public whether along the by reason of the sustains an ear, and he on an omnibus streets, of as well to the accident arises out incidental the .risks White, employment.” v. Ann. as in the course his of [Dennis 1917B c. Cas. 1. 326.] exposure perils street, “If to the work involves itself along . master’s the streets when his passes the . . . occasions of the statute. Cases protection under risk a arise where one hurt in street but where the is of is general . nature, Lightning strikes for peculiar not to street. not tuitously street; dropped enemy aircraft bombs do a special danger distinguished in from persons to street as expose danger place from . . result those houses. . must enough is if workman to it a but that is risk, make street .by place employment, discharge and in reason of his duty Y. 232 Co., his v. & employer.” to his Kadans N. [Katz l. c. 421.] is injured by a frayeling “Where is automobile man an while'he factory attempting go employer’s to car to his board a street to
tp report returning from his receive sales and instructions after employ injury trip á his his ariseá out the' course of Commission, ment.” 301 The Industrial 76 Co. v. [Porter Ill. ] (Syl. 5). compensation cases, “It a law is rule of that well-established traveling a employee, performance where an his duties as salesman, required streets such city, is to use the of a be- streets place thereon, the hazard incident to work, come his travel danger cars, including coming moving street contact danger . employment. . . fact is a incident to his The mere person that hazard which every is to on the street is one exposed . . . compensation. is not sufficient to defeat It n alsothe law that employee charged performance with the where duty'is place of a injured duty may found at' a where his re- have quired be, presumption him to a there is natural he in- that was jured consequence course'of, of, employment. and in
. In bar, case at there is no evidence direct as to what Conner doing was crossing where, and at the street time, he received the injury; fatal evi since, but shown dence, required and as Board, found work the Industrial his different, him to parts travel" in city, all for the the routes days being off’ anything the week choosing, of his own -and if day required attention, duty the route for was it his his go it; finding attend show since evidence he day, had an previous account or two left over a report he employer, part had made which yet day’s work, legitimate Industrial it is inference right draw, Board had accident- which that the resulted in injury and death of arose of and in the course of Conner out c. employment.” Conner, App. [Capital Paper v. 81 Ind. l. Co. rulings find to the -same effect The interested reader will Singer Sewing Co., R. ; M’Neice v. Machine Scot. L. 15 Heffernan Ky. Secretary 157; L. v. State, Main, v. T. Palmer Ir. 523; Thomp District, 231 Mich. 226; Stockley v. School Mahowald v. 113; & In 134 Minn. London Co. v. Co., Lancashire son-Starrett *8 Commission, App. 681; 35 Cal. Industrial Com dustrial Accident 43 Hunter, 226; Co., Zeier v. Transfer Colo. Boise mission v. 549. Idaho, 7(c), of Section and Section and
In view of our construction now light authorities, how stands case of these eminent traveling and "Wahlig employed as a salesman us? was before Louis city Louis, included of St. St. collector. His territory he County, employer preferred Field, Illinois. His that Scott and employer’s knowl- so with automobile, travel in and he did his an permitted choose routes in travel- edge to his and He was consent. working regular had He no ing from one customer another. evening. eight o’clock in as late as seven hours and worked 5 :15 than customers later he on knew that called His - Oscar call Gould’s It was his at custom the afternoon. every afternoon. city Monday 5:30 store in the Louis about St. to, employer instructed him 10, 1927, his December Saturday, On Gould’s collect following Monday payment see Gould on the talked Monday morning, December he account. On store arranged at to call Gould’s telephone and Gould over the day, morning of that his home the' He left in the afternoon. paraphernalia” used and “other books, price order books his with 5:151, - .to home. About return his not and did selling goods, by struck train automobile was "day, his of that afternoon St. westwardly in the city on Delor Street traveling _ he was while he accident, him the by injuries received Louis. As the result was, day.. He Gould’s store that reach day. He did not the next died Gould’s route to along usual direction, traveling in that store, traveling at was the time of the accident. He books, direction of his at the accident. home time of the His order price books auto- paraphernalia” and “other were found in his reasonably facts, mobile after the accident. From these it be engaged Wahlig duty inferred performance that was of his calling accident; employer’s day on his customers on the that, accident, way time of the he on his Gould, employer’s store of cus- customers, Oscar one of his at the tomary using customary time, transportation, means of being traveling customary along his established, route. It so fully finding commission was warranted the accident which “in of” his resulted employment. death arose of” and course “out words, In other it our conclusion the duties Wahlig’s necessarily exposed danger him employment to the having traveling his automobile struck a train in his ivhile thoroughfares, along! public automobile streets and on and which resulted in his death were direct and natural reasonably employment. result risk of a incident to his Appellants
II. further contend that benefit of total death $9,486, weeks, com- for 474.3 week awarded
m^ss^orL exceeds the amount authorized case> compensation law, our has and that “the commission no power for to make award the death of an in excess of 300 weeks, $6,000.” $20 a week total for
This our of Section contention calls the construction subject exclusively deals with law, which of death benefits. with now provisions section are we particularly concerned read follows: as injury death,
“Sec. 21. If the causes either or without disability, therefor provided shall in this section.” 1927, p. [Laws *9 “(b) dependents employer pay shall to the The also total employee single benefit, the total the which death amount of shall following be in manner first determined the to-wit: shall There computation per for the em- be determined as a basis cent 66§ year during immediately pre- average weekly earnings the ployee’s provided shall ceding such injury the in section 22 and amount as multiplied by three hundred and the amount so determined then be provided The such death death benefit shall be amount benefit. compensa- same manner for shall be in installments payable than act, but no less this in case required paid under tion is to be twenty dollars per nor more than week rate six dollars such shall, however, be deducted from death per week. There any may compensation paid employee which been to the have benefit during injury resulting his lifetime for the in his death.” [Laws italics.) p. (Our 3927, 503.] 22, compensation provides Sec. computing that “the basis for
provided in for this act shall follows: be as “(a) computed compensation The shall be basis of earnings injured wages person annual which the salary, received as earnings continuously if employment of the same during year injury.” preceding next p. [Laws $9,486, per total 474.3 $20
The death benefit of week for case, weeks, awarded the commission in this was calculated (b) 22 (a), accordance with Section and Section as shown following figures: Wahlig’s earnings year during net next before the average earnings weekly $2475.24. were $47.43 His were and 66f per average weekly earnings $31.62; cent multi- $31.62 of his plied by $9,486; 300 equals $9,486 in maximum installments .at per equals $20 week for 474.3 rate of week weeks. death, first 21 says: injury clause of Section “If causes disability, with or compensation either without thé therefor shall provided clearly indicates, think, be This in this section.” we Legislature independent Section 21 intended to make every except other the sections section of law referred to 21(b), prescribes com- Section 21. which Section the method of average puting says paying employee’s death benefits, weekly during year earnings next before the accident shall be provided 22,” determined Section “as death and that “The provided payable benefit for shall be installments same required manner that compensation paid is to be under this act.” payment provided The manner of thus referred for in Section 14(b), “Compensation wages payable as follows: shall be as the paid prior any were injury, but in event every at least once two 21(b) weeks.” says: however, Section also shall, de- “There any ducted from such death have benefit paid been employee during to the re- injury his lifetime for the sulting in his Legislature death.” Did the otherwise intend to limit the any case, amount of the death benefit or to limit period payments of the installment weeks? thereof to three hundred 7(b) We think True, provides, not. Section in effect, death that no benefit shall be unless the death of within occurs three hundred accident. But, nothing weeks after the find we section, law, nor other section of the which indicates payments intention to limit the installment death benefits a period weeks. connection, three hundred In this it should provide payment be noted that for Sections disability resulting from various kinds ranging eight for periods weeks; *10 hundred and that four life” “for 18(a) compensation payment Section provides for specified the Having disability. thus permanent in cases of total classes periods for various during paid shall Legislature would disability, reasonably assume that we during benefits shall be period have which death limited the any Moreover’, there if such had been intended. limitation during benefits period which death specifying reason for no shall be 21(b) com- method of paid, prescribes because Section case, puting total amount death benefit of the payments the manner thereof, rate week of installment paid. This, is opinion, shall be in our which such installments therefore, 21(b). conclude, We proper construction of Section correctly computed in this case was that the total death benefit commission, amount and that the total awarded does not ex- law. ceed the authorized our amount questions presented all for our consider- disposes This our appeal. conclusions, ation on In accordance with judgment Cooley, circuit court is affirmed. Davis and CC., concur. foregoing opinion C., a- PER CURIAM:—The Henwood, judges
dopted court. All of the opinion of the concur. as the Margarette Finley Ap J. M. Williams R. F. Williams, v. (2d) pellants. S. W. 103. Two, 11, 1930. Division June