Opinion
No. 21701.
April 7, 1952.
APPEAL FROM THE CIRCUIT COURT, VERNON COUNTY, O. O. BROWN, J.
Ray E. Watson, F. H. Richart and Rex Titus, Joplin, for appellant.
A. E. Elliot, Donald B. Russell, Nevada, for respondents.
This case arises under the Workmen's Compensation Act. The original claim was filed by Jane Koder, widow of William C. Koder. However, Jane Koder remarried and an amended claim was filed on behalf of Mary Elizabeth and Dorthey Jane Koder, minor children of deceased, William C. Koder, against Claude Tough, Nevada, Missouri, doing business as Cedar Lawn Dairy, and Bituminous Casualty Corporation, as insurer.
The amended claim alleged that William C. Koder met with an accident on September 23, 1949 at the "intersection of public roads about two miles east of Nevada, Missouri," by "collision of automobiles, employee returning from work being performed for employer." Employer and insurer denied that Koder "sustained an injury by accident arising out of and in the course of his employment resulting in his death on September 25, 1951."
A hearing was had before the Referee, which resulted in a finding in favor of employer and insurer. Claimants applied for a review of the Referee's award by the Industrial Commission of Missouri. A review was granted. On January 9, 1951, the Commission made a final award denying compensation, and found "from all the evidence that dependents herein failed to prove that the death of William C. Koder was the result of an accident arising out of and in the course of his employment" * * *. From this finding of the Commission denying their claim, dependents appealed to the Circuit Court of Vernon County. On June 15, 1951, that court entered an order setting aside the award of the Commission, and found "that there is not sufficient competent evidence in the record to warrant the making of the (Commission's) award." The circuit court found the amount of compensation due claimants to be $5,151. From said judgment employer and insurer have perfected their appeal to this court.
The first witness called by claimants at the hearing was Durwood Tough. He was employed by the Cedar Lawn Dairy, which was operated by his father, Claude Tough. Witness testified that William C. Koder and himself worked at the Dairy in Nevada until noon on September 23, 1949. Koder's duties at the dairy plant were to "run the bottle washer" and also serve as a mechanic. After launch on this date Koder, at witness' direction, drove to a farm owned by employer, which was located about three miles east of Nevada. Witness went to the farm about two hours later. Their purpose in going there was to remove the refrigeration body from an International truck which had been used for delivering ice cream for the dairy. There had been an electric motor, one and one-half horse power, on the International truck. Witness testified that several days prior to September 23, he had disconnected this electric motor and placed it on the floor board in the front part of the International truck. Koder worked at removing the refrigeration body until 5 p. m. He then said, "It is quitting time, I will see you in the morning." Koder got in his own truck and drove west. At a road intersection about three-quarters of a mile from the farm where he had been working he collided with a truck owned by one Henry Lyeki. Shortly afterwards witness came up to the scene of the collision and there found the electric motor in a ditch. How the motor had gotten into Koder's truck witness did not know, as he had given no instructions to Koder about it. Witness put the motor in his own truck, took it home and, next morning, took it to the dairy.
Witness further stated that deceased lived just west of Nevada; that the public road where the accident took place was a direct route to Nevada and also to deceased's home; that he did not know where Koder was going at the time of the accident; that it was not intended that the motor be installed in the milk plant in Nevada because "We didn't have no use for it at the time;" that the truck Koder was driving on the day of the accident was his own, and the Cedar Lawn Dairy had nothing to do with it in any way; that deceased drove it back and forth to wherever he was working as his own means of transportation.
Under the terms of Koder's employment he was to receive two quarts of milk a day from the dairy. Witness stated that deceased sometimes got the milk "at noon, sometimes he would take it of an evening, any time the dairy was open he would come by that would suit him best."
The next witness for claimants was their mother, Jane Morris, the former Jane Koder. She testified as to the ages of the children. She also stated that she did not get milk from the dairy; that Mr. Koder always brought two quarts home each evening. She also testified that during the time she was married to Mr. Koder he cut some lawns in Nevada and did repair work on cars after his working hours for Cedar Lawn Dairy.
With the above testimony, claimants closed their case, and the employer and insurer produced as their first witness, Claude Tough. He testified that he operated the Cedar Lawn Dairy, had lived in Nevada for 25 years, and that he also operated two farms, which are located east of Nevada. He employed Mr. Koder in March or April of 1949. At the time of this employment the arrangement was that "he (Koder) was to work at the dairy; when the job was over at the dairy, that is, the bottle washing, he was to do whatever I had for him to do, whether it was at the plant or at the farm or wherever it might be." The witness further testified that through the employment arrangement Koder was to furnish his own mode of transportation and witness (employer) was not to transport Koder to any of the jobs. Witness also stated that he had no control or management whatever over the truck owned by Koder.
On cross-examination, witness testified that he was not at the plant on the day of the accident; that so far as the arrangement for the milk was concerned Koder had a right to get it at any time of the day or night that he wanted it; that he was not required to return to the plant to get the milk that night or any other night; that Koder, whose working hours were from 8 a.m. to 5 p. m. did not report back to the plant when his day's work was done.
Durwood Tough was re-called by employer and insurer and testified that on the day of the accident when Koder said, "it is quitting time," witness looked at Koder's watch and it was 5 o'clock; that when witness arrived at the scene of the accident, it was after 5 o'clock.
Employer and insurer called as their witness, Robert M. Howell, who was in charge of the Cedar Lawn Dairy. He testified concerning the allotment of milk and stated that the employees "have no set time to get it; some take it at noon; some in the evening, and some don't take it if they don't need it;" that sometimes Mrs. Koder came to get the milk "at noon" and "sometimes later in the evening." Witness also testified that Mr. Koder did not have any duties to perform at the plant later than 5 o'clock in the evening; witness did not know anything about the electric motor and did not know where it was at the time of the hearing; that Koder did not return to the plant in the evening when he had been working elsewhere and did not report to witness.
With the evidence above detailed the case was closed and the Referee issued his award against claimants and in favor of employer and insurer. Permission was granted by the Industrial Commission allowing claimants to produce additional evidence by depositions. As a result, the depositions of Ernest Brazeal and Mrs. D. L. Franz were taken. Neither testified to any statement of fact pertinent to the issues in this case.
As stated, the Industrial Commission's award went against claimants, and was, in turn, set aside by the Circuit Court. Was the Circuit Court justified in setting aside the award of the Commission? This is the sole question on this appeal.
The law is now settled by the leading and much cited case of Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, that the reviewing court may not substitute its own judgment on the evidence for that of the Commission, but the court is authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon consideration of all of the evidence before it, and to set aside decisions only when they are clearly contrary to the overwhelming weight of the evidence.
We have set forth the evidence somewhat in detail. In our opinion it fully supports the findings of the Referee and the Commission.
Claimants do not correctly interpret the evidence as disclosed in the transcript. In their brief they say: "When he (Koder) quit work on the International truck he loaded the electric motor which weighed 160 pounds and the tools in his panel truck and started back to the milk plant."
Again in their brief claimants state: "Koder was on the direct route back to the plant where he was required to go to report the work on the International truck." No one testified that Koder was required to go back to the plant, or dairy, to report concerning the work done on the International truck. In fact, it was denied by Durwood Tough when the following question was put to him. "Q. That afternoon on the twenty-third day of September, 1949, when Mr. Koder finished working on this truck, he then started back to the milk plant here in town? A. No, sir. He told me that it was quitting time, and I says all right, and I went on down to the barn to get this feed and that is all I know till I come up the road and the accident had happened." Durwood Tough testified that he was supervising the work that Koder was doing on the farm. Who, then would Koder have needed to report to at the plant? Claude Tough, the employer, testified that he did not know anything about what was being done. Certainly Koder would not have been leaving the farm to report to Claude Tough when Durwood Tough was in charge of the work.
Claimants also contend that the only reasonable conclusion to be drawn from the evidence is that Koder was going to the plant to get the milk and that this was incident to his employment. The evidence shows that Koder got the milk at any time that suited him best. There was no set time to receive it.
The evidence shows that Koder stopped his work for the day; that his working hours were from 8 a. m. until 5 p. m.; that it was 5 o'clock when he expressed himself "it's quitting time." The accident occurred at the intersection of two public roads, when the deceased's own truck collided with an automobile driven by a total stranger to the relationship of employer and employee existing between the deceased and the owner of the Cedar Lawn Dairy. The time of the accident was after "quitting time" 5 o'clock. The place of the accident was three-fourths of a mile west of the farm or place of employment.
Claude Tough, the employer, testified that when he hired the deceased he did so with the express understanding that Koder would arrange his own transportation to and from work and that employer had no control over the Koder truck or the route that he might take in getting to and from work.
Claimants contend that the instant case is parallel to the Sanderson v. Producers Commission Ass'n case, 360 Mo. 571, 229 S.W.2d 563. In this they are mistaken. In the Sanderson case the employer furnished the employee an automobile for the purpose of going to and from his work. In the instant case Koder was to transport himself in his own vehicle to and from the place of work. In other words, in the Sanderson case the employer provided the transportation for the employee. According to the authorities, this is the principal exception to the general rule that employees are not regarded as being in the course of their employment while going to or returning from their work. 58 Am.Jur. p. 723, Sec. 217; 71 C.J. pp. 712 and 722, secs. 443 and 446; Howes v. Stark Bros. Nurseries Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839.
To say the least, it cannot be said that the finding of the Industrial Commission is "clearly contrary to the overwhelming weight of the evidence." This being so, under the holding of the Wood case, supra, the Circuit Court should not have substituted its own judgment on the evidence for that of the Commission.
The judgment of the Circuit Court should be reversed and remanded with directions to that court to enter a judgment affirming the findings and award of the Industrial Commission. It is so ordered.
All concur.