dissenting.
This dissent should not be misconstrued as a callous indifference to the tragedy which befalls any family upon the loss of one of its members. On the other hand, the workmen’s compensation laws of this state have never been intended to impose upon an employer the status of insuror of his employees for all reasons. The majority opinion herein takes such concept to the ultimate brink of such a concept. The majority opinion lends judicial sanction to an ever growing belief that government has the inherent duty to spend and distribute the money and property of others.
In my opinion, there is no credible evidence upon this record to show the deceased employee herein ever resumed his employment to bring this claim and award within the statute. In a recent opinion by this very court, the parameters of recovery under our workmen’s compensation law were stated when this court declared: “To recover workmen’s compensation benefits in Missouri, the employee must prove the injury was a natural and reasonable incident of the employment and in consequence of *789some hazard connected therewith. The scope of the contract of employment furnishes the determinative test in defining what is incident to employment in each case,” (emphasis added) (citations omitted). Garrett v. Industrial Commission of Missouri, 600 S.W.2d 516, 520 (Mo.App.1980).
The majority opinion quotes the following from the findings of the Commission to support its decision: “... (T)he accident which resulted in the death of employee Brown ‘occurred within the period of his employment and was at a place he could have reasonably been expected to be while fulfilling the duties of his employment’ ...” The quote continues to express the Commission’s consideration of the decedent’s deviation and the “resuming” of the employment because the decedent commenced to drive the company car over the regular route home. In the first instance, the evidence as to the “regular route home” was provided by the surviving widow, who, as the record reveals, testified to two alternative routes from the Plaza area of Kansas City, Missouri, to Highway U.S. 69 in the state of Kansas. There is no question her testimony as to both routes included the location of the vehicular accident which caused the death of her employee husband, but she testified only to having ridden with her husband when he had, on prior occasions, delivered items to customers. Her testimony, in my judgment, lacks sufficiency to support a conclusion the area of the accident was a “regular route home”. As near as I can determine, from the evidence upon the record, it is certain the deceased left work, went to the apartment of a friend, spent the evening with the friend and another couple, took one Tom Spinner to his residence, and was involved in a one vehicular accident on U.S. 69 Highway in Kansas. In my judgment, it is impossible to discern from the evidence exactly where Tom Spinner lived in relation to where the accident arose. It is not so significant as to the geographical factor, but more importantly, it bears relation to the issue that the deceased did not “resume” his employment. What I observe from the evidence is that the deceased, after leaving his friend’s apartment, then took Spinner to his residence and was proceeding home. This was the continuation of a private, not an employment activity. The mere fact that the accident occurred on a highway, even presumed to be a part of his regular route homeward, does not support the conclusion of the Commission nor the majority opinion.
I venture both the Commission and the majority opinion were persuaded toward their conclusions by the erroneously admitted testimony of the widow, who, over objection, was allowed to testify that the deceased called her after 10:30 p.m. and told her he was going to deliver a bottle of whiskey to a customer whose business location was south of the location of the deceased’s residence. In the first instance, such testimony was of the rankest form of hearsay. I am not unaware of the exception to the hearsay rule which permits such testimony as a declaration of present intention to do a particular act, Lewis v. Lowe & Campbell Athletic Goods Co., 247 S.W.2d 800 (Mo.1952), Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555 (1937), but that rule is tempered with the limitation that any such declaration must have been made in a natural manner and not under suspicious circumstances, Lewis supra. This testimony must be weighed in light of other evidence upon this record. The investigation report of the accident reveals the accident was discovered by a passing motorist who notified authorities, after observing the scene, by CB radio. The report was received at 11:52 p.m. The decedent’s friend testified decedent left the apartment with Tom Spinner at 11:20 p.m. The evidence reveals there was no phone in the apartment. The evidence reveals decedent did not leave the apartment for purposes of using a telephone. From this evidence, in a period from 11:20 p.m. to 11:52 p.m., decedent departed his friend’s apartment, went to the vehicle, drove his friend, Spinner, home, located and used a telephone, and returned to U.S. Highway 69. These events would have had to occur within a time frame of 32 minutes, without even accounting for the time lapse involved in *790the discovery and report of the accident by a passing motorist. At best, these factors make such hearsay testimony suspect. The foregoing, coupled with the fact the widow did not know decedent’s whereabouts, makes such testimony even more suspect. It is evident from the Referee’s ruling, he did not place any credibility upon the testimony.
The majority opinion alludes to the testimony that the decedent was enroute to deliver a gift of liquor to a customer. This finding by a majority (although not a finding by the Commission) premises such upon the validity of the testimony of the widow regarding the alleged phone call from decedent. In addition, further evidence casts serious doubt on the allegation that this customer was, in fact, an active customer of decedent. Further, it is interesting to note that there was not one shred of evidence that there was any bottle of liquor (the supposed customer’s gift) in decedent’s vehicle. There is insufficient evidence to support the majority conclusion that decedent was enroute to deliver a bottle of liquor as a customer’s Christmas gift.
The majority addresses the defense claim of intoxication as the cause of the accident in a rather cursory manner holding that, unless it be shown by the evidence, decedent was unable to perform his employment duties, such defense would not lie, citing O’Neill v. Fred Evans Motor Sales Co., 160 S.W.2d 775 (Mo.App.1942). The majority references only the odor of alcohol within the vehicle. The majority opinion does not mention that the accident report also included the officer’s observation of a strong odor of alcohol upon decedent’s person and an empty glass which also held the strong odor of alcohol. An interesting feature is that neither the accident report or a later inventory of the vehicle listed a bottle of liquor (the supposed customer’s gift) or a cardboard case, holding bottles of liquor, which the widow testified to having observed in the vehicle the day before the accident.
The only plain common sense conclusion which can be reached under all the evidence (i.e.) a one vehicular accident which shows the vehicle struck a medial guard rail before turning over three times and before ending upright in the medial strip on an express highway; an empty glass with the odor of alcohol and the strong odor of alcohol upon decedent’s person, is that this accident was alcohol related. The accident and the circumstances under which it occurred cannot, by any stretch of the imagination, be said to “... be a natural and reasonable incident of the employment and in consequence of some hazard connected therewith ”, Garrett supra.
The judgment of the circuit court affirming the award of the Commission should be reversed and this cause should be remanded with instructions directing the Commission to enter an order of denial of this claim in conformity with the ruling heretofore entered by the Referee.