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Tanner v. Crest Foam Corp.11/10/2003
REVERSED AND REMANDED WITH DIRECTIONS
Crest Foam Corporation (employer) and Continental Casualty Company/RSKCo. (insurer) appeal an award of the Labor and Industrial Relations Commission (the commission) that awarded death benefits to Lynda Marie Tanner, surviving spouse of Gregory L. Tanner (employee), and Megan R. Tanner and Alan G. Tanner, surviving dependents of employee. This court reverses the award and remands with directions that the commission enter an award denying benefits.
Employee was a territory sales manager for employer. His job was to sell carpet pad to retailers within an assigned sales territory. Employee's sales territory consisted of eastern Missouri north of Cape Girardeau and southern Illinois. Most of employee's customers were in St. Louis. His primary duty was developing the market for employer's product in the St. Louis area. He had been requested to move to St. Louis in early 1997. He and his family were planning to make that move.
Employer did not establish set hours for employee or set a work schedule for him. However, employee was expected to make eight "calls" per day. Calls could be made on established customers or potential customers.
Employee was not provided an office or a company vehicle. He used his personal vehicle to call on customers. He used the same vehicle for personal use. He was not reimbursed for travel expenses incurred in his work. He was provided an 800-voice-mail number for use in communicating with customers and his employer. Employee carried carpet pad samples, his brief case, a cell phone, and paper work in his vehicle at all times, even when he used the vehicle for non-work-related purposes.
On the morning of December 2, 1996, employee made telephone calls from his residence in Jackson, Missouri. Telephone records revealed that he called employer's 800 number. He left his residence at approximately 9:30 a.m. He told his wife he was going to the Fredericktown and Farmington area to make calls. He was dressed in a dress shirt, coat, and tie when he left the residence.
At approximately 1:30 p.m., employee was killed in a one-vehicle accident on ZZ Highway near Glen Allen, Missouri. A passenger in his vehicle, Lloyd Kelly Mims, was also killed in the accident. Toxicology reports revealed that at the time of employee's death, his blood alcohol content was 0.162 percent, more than twice the current legal limit for operating a motor vehicle, and Mr. Mims' blood alcohol content was 0.333 percent.
Employee's wife, Lynda Marie Tanner, was asked about employee's relationship with Mr. Mims. She testified that employee had known Mr. Mims two or three years. She said employee and Mr. Mims had been in contact with one another within the week preceding the accident. She said employee and Mr. Mims usually went fishing when they were together. Mrs. Tanner was asked if employee and Mr. Mims usually drank alcohol when they were together. She answered, "Yes."
Mrs. Tanner was asked if she knew whether Kelly Mims was employed. She answered, "Not that I know of." She was asked, "To your knowledge, Kelly Mims had no interest in any kind of carpet business or flooring company or hardware store or anything of that nature?" She answered, "Correct." She was asked the following questions and gave the following answers regarding her husband's relationship with Mr. Mims:
Q. According to your deposition testimony, you stated that you didn't think very highly of Mr. Mims, is that a fair statement?
A. Yes.
Q. You didn't think he was very good company for your husband, is that correct?
A. Yes.. . .
Q. . . . Y
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