ON the Merits of the Appeal.
With reference to the merits of the case on appeal, it should be said at the outset that “employer, appellant” strenuously contends that “the award against it was rendered without jurisdiction and without sufficient competent evidence to support it.”
We have not failed to keep in mind, not only in ruling on the legality of the appeal but also in deciding the case on the merits, that the employer in this case never elected to come under the provisions of the Missouri Workmen’s Compensation Law (Chap. 28, R. S. Mo. 1929). But such employer never filed written notice of its election to reject said chapter, and hence it may le “conclusively presumed to have elected to accept the provisions of this chapter” and to furnish compensation as therein provided. [See. 3300, R. S. Mo. 1929.] However, such employer is not required to elect or reject said law, nor can it be “conclusively presumed” to have accepted the law, if it is a minor employer (i. e., one who has “ten or less employees regularly employed” and “is not engaged in an occupation hazardous to employees).” [Sec. 3302, R. S. Mo. 1929.] Consequently, the Compensation Commission has no jurisdiction or power to consider the claim herein if the employer had less than ten employees regularly employed. It was not engaged in a hazardous occupation.
Under Section 3342, Revised Statutes of Missouri, 1929, the Commission finds the facts and such findings are conclusive, except where on appeal the court, with power to review only questions of law, shall modify, reverse, remand for rehearing or set aside its award upon any of the following grounds and no other:
“1. That the Commission acted without or in excess of its powers.
‘ ‘ 2. That the award was procured by fraud.
“3. That the facts found by the Commission do not support the award.
*67“4. That there was not sufficient competent evidence in the evidence to warrant the making of the award.” [Sec. 3342, R. S. Mo. 1929.]
The first question to be determined herein, then,. is whether or not the appellant employer is a major or minor employer. Of course, if there is competent evidence in the record before the Commission, on both sides of the question, then the Commission’s finding thereon is conclusive, since we cannot decide the facts, but can only pass on questions of law. But if there is no evidence to show that the employer is subject to the Compensation Act, or, which is the same thing, if the evidence in claimant’s behalf, relied on to support her contention that the employer comes within the purview of the act, is not competent in law (for instance, that it is wholly hearsay), then we can say, as a matter of law, that there is not sufficient competent evidence in the record to show that the employer was within the purview of the act, and that the Commission acted without power, or in excess of its powers. Section 3301, Revised Statutes of Missouri, 1929, renders the employer, if under the purview of the act, liable for personal injury to or death of, the employee “by accident arising out of and in the course of his employment.” As we understand it, there must be evidence in the record tending to show both of these things, i. e., that it arose out of the employment and also that it was in the course thereof. [Smith v. Levis-Zukaski Merc. Co., 14 S. W. (2d) 470, 472.] If, therefore, the record, as a matter of law, fails to show that the accident arose out of and in the course of the employment, then we are justified in holding, and have the power to hold, that “there was not sufficient competent evidence to warrant the making of the award.” Consequently the two questions we are called upon to decide, and decide as matters of law, and not as matters of fact, are: 1. Is there any competent evidence anywhere in the case tending to show that the employer comes within the purview of the act, i. e., that the employer had more than ten employees regularly employed ? 2. Is there any competent evidence anywhere tending to show that the accident arose out of and in the course of the employment?
Upon the first of these questions, the appellant urges that since it was stipulated at the hearing before the Commission that one of the questions was “whether or not the Shawnee Credit Corporation was on July 29, 1929, a major or minor employer,” therefore that is the only date to be considered in determining the question whether the employer had “more than ten employees regularly employed, ” and no investigation of the number of employees can be had as to any date prior to that time. We do not understand the stipulation to mean that it is agreed that the number of employees actually at work or employed on that particular day is determinative of the question whether the appellant was a major or minor employer on that date. *68The stipulation is that the question is whether or not the corporation was a major or minor employer on that day. Whether it was or not is a question of law under the facts shown in evidence. If the evidence is such as to raise an issue as to the facts, then the Commission has the exclusive power to decide those facts. But after the facts are established, then the question of whether an employer is a major or minor employer becomes one of law and is to be thus determined and not controlled by any implication arising from a stipulation. Nor does the stipulation prevent an investigation of the employment of employees for a time prior to the date of the accident in order to ascertain the status (i. e., whether they be “regularly employed” or not) of the employees at the time in question. The Section 3802, Revised Statutes of Missouri, 1929, defines a major employer as one “who has more than ten employees regularly employed.” Paragraph (d) of Section 3305, Revised Statutes of Missouri, 1929, also says that an employee who is “employed by the same employer for more than five and one-half consecutive work days shall for the purposes of this chapter be considered a regular and not a casual employee. ’ ’ The law does not provide that one may not be a regular employee unless he has been actually engaged in the work for more than five and one-half consecutive work days before the accident, but that where one is employed, i. e., hired for a work contemplating, and is actually engaged for, more than five and one-half consecutive days, he must be considered a regular employee. From the definitions used, it would seem that a “regular” employee is one who is “regularly employed” and must be included or counted in determining the number of employees “regularly employed.” The word ‘1 regular ’ ’ is used in the act as an antonym of the word ‘ ‘ casual ’' and when an employee is regular or “regularly employed” he is not casual. This view seems to be supported by the language used in Kemper v. Gluck, 39 S. W. (2d) 330, l. c. 332, where, after saying that the employer in that case was not engaged in a hazardous occupation, or at least the Commission had not so determined that the occupation was hazardous, the court used these words:
“Then it was a question of fact whether the defendant here employed more than ten regular employees; whether he was a major or minor employer.” (Italics ours.)
Schneider on Workmen’s Compensation, p. 133, says that, in a sense, the term “casual” is an antonym of the phrase “regularly employed” and that its construction will throw light on the question whether an employer has a certain number of employees “regularly employed” or whether some of them are casual so that his properly-to-be-counted employees are less than the required statutory number. Consequently, in the ease at bar, if it be found by the Commission, under evidence sufficient to raise an issue as to the matter, that the employer has more than ten regular employees, that is, employees *69under contract of employment which contemplates work for, and which employees do actually work for, more than five and one-half consecutive days, then such employer is a major employer, unless enough of such employees to bring the number down to ten or less, are found to be either receiving annual earnings of more than $3600, or are engaged in performing work not incident to the operation of the usual business of the employer. The relation of employer and employee under the Compensation Act is one of contract and the act is a part of .every contract which comes thereunder. When the statute (Sec. 3300) says that, under certain circumstances, an employer is “conclusively presumed” to have “elected” to accept the provisions of the act, this presumption of election relates, not merely to the time of any particular accident, but refers to the term of his status as an employer under the law whenever that status arises. (Otherwise there would be little use in the statute requiring him to file notice of rejection prior to the accident.) In other words, if after having once reached the status of a major employer, his election or presumed election to accept the provisions of the act continues, in the absence of a written rejection, even though the number of employees may change intermittently. The act having once become a part of the employment contract, either by express election or by conclusive presumption, it can be cancelled only by written, filed, rejection. Otherwise, the employer would be in or out of the purview of the act from day to day, according as the number of his regular employees, or “employees regularly employed,” fluctuated from day to day. This would be intolerable and prejudicial to both employer .and employees, since neither would know what his rights were on any day until he had first taken a careful enumeration of the'employees for that day, including items as to the nature of their work, the amount of their pay (whether over $3600 per year or not) and the length of time of service contemplated or actually rendered. [See Carrigan v. Western Radio Co., 44 S. W. (2d) 245.] In the case of Comerford v. Carr, 284 Pac. 121, the employer, on the date of the accident had less than the required number of employees to make him subject to the act, but several times prior to that time he had had more than the required number.. It was held that, inasmuch as he had not filed a written notice of election not to accept the provisions of the act, nor that he rejected them, he was subject to the act, notwithstanding the fact that on the day of the accident he did not have the required or statutory number of employees.
Claimant, in her brief, has compiled a list of sixteen persons who she claims were “in the service” of the employer on the day of the accident. As to these, and the number of employees regularly employed, the record discloses the following:
*701. Jannan G. Baker, wife of Frank C. Baker (who was tbe president of, and a director in, the corporation, and owner of all the stock therein, except such few shares as were issued to persons to enable them to qualify as directors). Mrs. Baker can' in no sense be termed an employee. She was a director, but received no compensation, and, so far as the record discloses, did nothing beyond the usual duties of a corporate director (owning perhaps but one share), which is to vote according to directions.
2. Frank C. Baker, who, as above stated, served as president and director, performing the ordinary duties of those offices. He received a salary of $100 per month for those services but no other compensation and so far as the record discloses did no other work in the business outside of duties appertaining to such offices of president and director. It is doubtless true that corporate officers may be employees within the meaning of the Compensation Act, if the facts are such as to so constitute them under the law. But are the facts herein such as to constitute Baker an employee within the meaning of the act ? Section 3305, Bevised Statutes of Missouri, 1929, defines ‘'employee” in the following language:
“The word ‘employee’ as used in this chapter shall be construed to mean every person in the service of any employer . . . under any contract of hire ... or under any appointment or election, but shall not include persons whose average annual earnings exceed three thousand six hundred dollars . . . ”
The case of Columbus Gas Co. v. Industrial Comm., 227 N. W. 292, cited by claimant in support of her contention that president Baker can be counted as one of the employees, is clearly inapplicable to the case here. The president in that case was injured while performing manual labor in the shop. His principal work was of this character rather than that of the ordinary duties of the president. So also in the case of Skoutchi v. Chic Cloak & Suit Co., Inc., 130 N. E. 299, the corporate officer was injured while performing his regular duties, not as president, but in packing, shipping, selling and delivering goods. He held the title of an executive officer, but at the same time was its employee and was injured while working as such. In the case of Kennedy v. Kennedy Mfg. Co., 163 N. Y. Supp. 944, the award was based not so much on the fact that the injured former corporate officer was an employee (though he perhaps was, but, at the time of the accident, was not an officer), but on the fact that the insurer had issued the policy to, and had treated, him as an employee and for that reason would not be allowed to deny that he was an employee. So also in Hubbs v. Addison E. L. & P. Co., 130 N. E. 302, the injured corporate officer, in addition to whatever his duties as such officer required, was regularly employed in manual labor in the yards and received therefor wages of $25 per week. The same is true of claimant’s cited case of Dewey v. Dewey *71Fuel Co., 178 N. W. 36; his wages, however, were $2 per day. He certainly was an employee. But Mr. Baker, owning practically all of the stock (all of it as he himself said), and doing none of the work of an employee, can hardly be said to be in the service of “an employer as contemplated by said Section 3305, supra.” [Atchison v. Industrial Comm., 188 Wis. 218, 205 N. W. 806.]
3. Frank W. Nelson, who was vice-president and a director of the corporation. His duties were those of “manager” or “general manager” and he was active in the business, and first became connected with the company August 20, 1928, and has been so continuously since that time, and was, therefore, general manager on July 29, 1929, at that time receiving a salary of $3600 per year. He stated he first got $250 per month “plus ten per cent of the company’s earnings,” but in February, 1929, he says his salary was raised to $300 per month.
“Q. Were you paid anything else, Mr. Nelson? A. I did not withdraw any more than that amount.
“Q. Were you credited on the books with any more? A. It was not set up- on the books as a credit to my individual name. According to our contract, I drew ten per cent of the earnings as I previously stated. ’ ’
He testified that this was under a written contract and promised that he would produce it, but all that was produced was an unsigned contract in blank purporting to be to that effect. This contract in blank purported to be “by and between Frank W. Nelson and the Shawnee Credit Corporation by its President Frank C. Baker.” It recited that “the said Frank W. Nelson is hereby employed by the said Shawnee Credit Corporation in the capacity of - at a salary of-which may be changed as per mutual agreement from time to time:
“In consideration of the employment and appointment of the said Frank W. Nelson by the Shawnee Credit Corporation, it is further agreed that the said Frank W. Nelson shall be entitled to ten per cent of the net profits of the Shawnee Credit Corporation, this to be determined annually, said ten per cent of the net profits shall be applied on the purchase price of” 150 shares of the said corporation’s common stock, “now owned by the sa/id Frank C. Faker to be sold to the said Frank W. Nelson” at $115 per share. The contract could be terminated by either party giving thirty days’ written notice. In the event of such termination the corporation agreed to purchase said 150 shares of stock at the then book value.
This, as stated, was not signed by either party, but there was evidence that it was drawn up for use in the consummation of the hiring contemplated, but Baker was quite sure it had never been executed and did not contain the precise terms of the contract under which the employment was entered into. Nelson testified it was mere*72ly a “preliminary contract” and did not represent the terms of tbe contract between Mm and the company; that when he testified that' the contract was in writing he referred to this tentative contract. It may be observed that it is in no material way different from their oral evidence as to the terms of the contract, the only difference being as to the amount of stock which the employee must purchase.
The by-laws of the corporation provided:
‘ ‘ See. No. 5: No officer of the corporation shall, by virtue of his office, be entitled to any compensation unless such compensation shall be first fixed by the Board of Directors.”
The corporation had no stock, and the records of the company did not show any authorization of salaries except that of $200 per month to the president, Baker, which was later reduced to $100 per month. And the evidence is that, in the absence of any such authorization by the directors, no salary could be paid to any officer. Moreover it is apparent from the evidence of Mr. Baker that this idea of having executive officers to invest ten per cent, or any other per cent, in the stock of the company was his idea and was to offer to the executive officer an incentive to keener and more active work, and should not be considered as earnings in the sense of Section 3305', at least insofar as this particular case is concerned. The corporation, as stated, had no stock, and was not obligated in said contract in regard thereto, and it is manifest from the wording of the contract that it was not obligated to pay anything more than the $3600 per year. The right to ten per cent of the net earnings (which last were of course dividends on the stock), would take such ten per cent, not out of the company, but out of the income on the stock investment owned by Mr. Baker. The promise to the employee to let him have ten per cent of the net earnings of the company was therefore a conditional promise, in reality, emanating from Baker personally. It. was conditioned on the event that there would be dividends, which in these “piping times of peace” is a very uncertain matter. So that, it cannot be said, as a matter of law, that Nelson was not an employee because his “average earnings exceed three thousand six hundred dollars” as provided in Section 3305. Nothing in the company’s records shows that Nelson was to get, or did get, anything more than the specified $300 per month.
In what we have said, we are not undertaking to pass on the facts which do or do not constitute Nelson an employee, for that is solely the province of the Commission. All that is here said is that the evidence is such that it is a matter for the Commission, and not for this court to pass upon, and hence as said Commission has found that he is to be counted as one of the necessary number of employees, we cannot eliminate his name from that number. Whether a case comes within the Compensation Act is a question of fact. [Kemper v. Gluck, 39 S. W. 330, 332.] Whether *73.there is any substantial evidence whatever tending to show that the case is, or is not, within the act, is for the courts.
In Hauter v. Coeur D’Alene A. Min. Co., 228 Pac. 259, in construing the section of the Idaho W. C. A., excluding persons from its benefit whose remuneration exceeds $2400 a year, it was held that the section was not applicable to an employee “not employed under a definite certain contract for a full year or more at a determined or determinable wage amounting to more than $2400.”
In Miller Indemnity, etc., Co. v. Patten, 250 S. W. 154, it was held that the decedent was an “employee” and not a partner, even though, under his contract, the net profits might reach a figure which would entitle him to a one-third interest in the property and result in making him a partner. The contingency that his compensation might ultimately result.from his services was not allowed to affect the question of his being an employee.
The evidence as to J. V. Quinn (secretary), is in a situation similar to that of Nelson’s, except that Quinn was to get five per cent of the net earnings, and would have to buy one-half the amount of stock that Nelson was to take. Consequently, neither Nelson nor Quinn can be taken out of the list of employees in order to render the number thereof ten or less and take the employer out of the purview of the W. C. A. as specified in Section 3302.
Our statute, Section 3374, Revised Statutes of Missouri, 1929, requires that “All of the provisions of this chapter (28) shall be liberally construed,” etc. The case of Marshall Field & Co. v. Industrial Comm. of Ill., 120 N. E. 773, 774, under a statutory definition of the word “employee,” no broader than, and very similar to, ours, held that the definition is to be broadly construed. Of course, this means wherever there is any room for construction. “In construing the legislative definition of employee in the W. C. A. a measure of liberality should be indulged in to the end that in doubtful eases an injured workman or his dependents may not be deprived of benefits of humane provisions of the compensation plan.” [McDowell v. Duer, 133 N. E. 839, 841; Hurst v. Huley, 141 N. E. 650.]
4. Mrs. Bertha Steek is another on the list of sixteen who, the appellant contends, was a casual and not a regular employee regularly employed. But clearly there is sufficient evidence in the record from which the Commission could properly find that she should be counted, as a regular employee, regularly employed. When she first went on the stand and was asked if she were formerly an employee of the Shawnee Credit Corporation, she replied in the affirmative and then added the word “temporary.” She admitted, however, that she was employed from June 19, to June 30, 1929, and drew fifty dollars for ten days’ work at five dollars per day and that she was continuously in the appellant’s employ until the 27th of July, .1929, drawing $115 for twenty-three days at five dollars per day, and on *74said last named date went on a vacation of two weeks with the understanding that, at the end of the two weeks, she would return, and she did return on August 11, 1929, and worked thereafter for a period of twelve days continuously at five dollars per day. She should therefore be counted as a regular and not as a casual- employee, within the meaning of paragraph d of Section 3305, Revised Statutes of Missouri, 1929.
5 and 6. Yerla Maloney and Norma Baker were also regular and not casual employees within the terms of the aforementioned statute'. For the former was employed and worked continuously every consecutive working day from and including July 29, 1929, up to and including August 21, 1929; while the latter was employed and worked continuously every consecutive day from and including July 29, 1929, up to and including August 14th, of that year. The provisions of the Compensation Act regulate, and are a part of, the contract from the moment the employment, i. e., the status or relation of employer and employee begins. [Cameron v. Ellis Construction Co., 169 N. E. 622, 252 N. Y. 394.] “Employment is not casual merely because it is not for any specified time.” [1 Schneider on Workmen’s Comp. Acts., p. 253.] “Evidence that a gatekeeper was killed on the first night of his employment is not sufficient to establish that his employment was casual.” [2 Schneider on W. C. A., p. 1801.] “The burden of proving that the employment was casual is on the employer.” (Italics ours.) [2 Schneider on W. C. A., p. 1868.] For this reason and others herein noted, the Commission could properly count Mr. Boand as a regular and not a casual employee.
It seems there were two corporations, the Shawnee Credit Corporation and the Sterling Finance Corporation. The stock of the latter was owned by the former. The officers of both were identical, and their lines of business were similar. Their businesses were carried on in the same offices. By reason of these facts the losses of the latter corporation were the losses of the former corporation. Sometimes the employee Boand was paid by the Shawnee Credit Corporation, and the employees of the two companies were interchanged as to services. “The common law principle that an employee lent to a special employer, and who assents to the change, becomes a servant of the employer to whom he is loaned, applies to cases arising under the workman’s compensation acts.” [1 Schneider on W. C. A., sec. 24, p. 213.]
It cannot be said that the employment of the employees herein-before considered was not incident to the business of the employer. Considering the business of the employer, that of making loans on collateral paper, each and every one of them undoubtedly had a part in the operation of the business, or whose work was necessarily and directly incident thereto. Correct and comprehensive, as well as *75convenient, records are important and necessary to the carrying on of this business, and it will not do to say that those engaged in perfecting and keeping these records in the proper condition were merely casual employees or were engaged in work not incidental to, nor a part of, the usual business of the employer.
We have carefully considered all of the objections made to the persons named in the list of sixteen claimed to make up the list of regular employees, regularly employed, and find that there are still more than ten of that number. Hence, there being substantial evidence to support that claim, we cannot disturb the Commission’s finding in that regard.
Did the accident arise out of and in the course of the deceased’s employment? As to the latter, the evidence hereinbefore recited in considering the motion to dismiss, is ample to justify the Commission in so finding. [Wahlig v. Krennig-Schlaup Grocer Co., 29 S. W. (2d) 128, 130; Smith v. Levis-Zukoski Merc. Co., 14 S. W. (2d) 470; Jackson v. Euclid-Pine Inv. Co., 22 S. W. (2d) 851; Leilich v. Chevrolet Motor Car Co., 40 S. W. (2d) 601.]
As to whether the accident arose out of the employment there is this to say, in addition to what has been said in that part of this opinion passing on the motion to dismiss appeal:
The record discloses that police officer Crawford, who arrived shortly after the accident and found the car wrecked, the tree greatly damaged, and Barlow lying on the parking about eight or ten feet east of the car, testified that he did not have any conversation with him, but “heard him tell somebody, and I don’t know who it was he was talking to, but I heard him make the remark he had spells come on him of blankness at times. He had been shell-shocked in the war and he would be all right in a few minutes. That is all I heard him say.” Witness said that at that time he (Barlow) was in a “kind of semi-conscious condition like an injured person is.”
Another witness, Lanshof, was on the south side of Fortieth Street about fifty feet east of Warwick, when he “saw some cars coming across Warwick at the rate of about forty-five miles an hour, and it weaved over to the north side of the street and barely missed a sedan driven west (Barlow as heretofore stated was going east on Fortieth) and then continued on down and weaved over to the south and ran into this tree. . . . The tree is slightly east of the middle of that block on the south side.” At times witness was in such close proximity to the injured man lying there, that he could have heard anything he said, but not all the time, but he heard nothing while he was there. At the time he first saw the car it was slightly west of Warwick just entering the intersection, and it did not start weaving until it crossed Warwick, it “weaved north and then over to the south” and “almost side-swiped this car going up the hill” and then it zigzagged a little more and ran into the tree. *76Witness was between forty and fifty feet west of tbe tree. He never noticed the driver until after tbe wreck, nor did any other witness.
Barlow’s wife, tbe claimant, reached tbe hospital after be bad been taken there. He appeared to be “suffering badly when I got there.” . . . “I believe be was unconscious. He talked to me afterwards.” “He was disfigured and be was all wrapped up to bis chin and one band.”
“Q. Did Mr. Barlow regain consciousness? A. He did for a few minutes but that is all. He could see me and be seemed to know what I said to him, but be did not talk to me only shortly after they put him to bed.
“Q. What was tbe course of that conversation? A. I said to him, I said, ‘Lloyd do you know I am here,’ I said, ‘I am Ruth,’ and be said, ‘yes’ and be said, ‘did they get that fellow’ and I said, ‘What fellow,’ and he said, ‘I don’t know what fellow’ and be said be either turned out to keep from hitting a man or to keep a man from hitting him, I don’t know which, and just to pacify him and keep him quiet, I said, ‘Tes, I guess they got him.’ I did not know then how the accident happened.
“By Mr. Byers: If tbe Court please, I ask that that be stricken out as being based on hearsay; as being a self-serving declaration; as having no probative value as far as the issues herein are concerned.
“By the Referee: I am going to overrule that motion.
“By Mr. Byers: Exception.
‘ ‘ Q. Did he state anything further to you ? A. He did not.
“Q. Did you have any further conversation with him? A. I did not.
“Q. Did you stay at the hospital that night? A. Not all night. I stayed until about nine or nine-thirty.
“Q. He still appeared in about the same condition when you left? A. Yes, sir, he did.”
On cross-examination, witness testified that the attacks or fainting spells which deceased had at times, would last “just a few minutes” and “maybe he would have one a week or maybe he would not have one.” This was in reference to times before the accident.
Mrs. Leonard, a witness for claimant, testified she was on the north side of Fortieth Street about halfway between Warwick and Hyde Park streets, walking east. There were two cars behind her when she first noticed them. They were going east the same way she was going. Mr. Barlow’s car crashed into the tree. It was south of the other car, and the other man sped on across the street and stopped his car and came back. He asked someone to help him get the injured man out of the car and they did and laid him down, afterwards placing him on the parkway in the shade. He was unconscious. She never heard him malee any statement or say anything at all while he was there. She said she “was right there on the ground.” *77“I don’t think the man could talk. He kept doing, putting his hand up here (indicating) as if it hurt him terrible there.” She said she heard the cars coming behind her. She said she did not know what caused her to turn around and look. She did not notice that the cars were "coming so fast,” they seemed "medium” to her. She had never owned a car or driven one. They (the two cars) were side by side. She resumed her walk toward the east, and when she was just opposite the tree the cars caught up with her and Barlow’s car hit the tree as she looked up. She did not look up in time to see it hit the tree.
Now, the evidence of Crawford hearing the injured man tell "somebody” he had been shell-shocked in the war and had fainting spells, does not expressly say that that is what caused the accident, but it appears on its face to be a statement concerning his theretofore unconscious condition and the reason for his certainty he would be all right in a few minutes. Besides, this evidence of Crawford is contradicted by Mrs. Leonard who says she was right there and did not hear him say anything but that he was unconscious and couldn’t say anything. The truth, as between these two witnesses, was certainly a matter, or issue, of fact, for the Commission. The evidence of Crawford, if true, was not, in our opinion, hearsay and hence did not afford claimant any ground or excuse to introduce the evidence as to what the injured man said to his wife at the hospital.
Whether what Barlow said to his wife after he had been removed to the hospital, had had his injuries dressed and had been put to bed, was admissible under the rule of res gestae, is a matter which we seriously doubt. We have been cited to no case in Missouri holding that it is a part of res gestae. It is true, that-it is sometimes held that where a person is injured and rendered unconscious, and afterwards, immediately upon regaining consciousness,'Spontaneously gives forth declarations as to how the accident happened, such will be regarded as a part of the res gestae even though a considerable time has elapsed since the happening of the injury. [22 C. J. 466.] Now, the evidence is not definite nor certain that Barlow had continued to remain unconscious throughout the period intervening between the injury and the talk at his bedside at the hospital. Indeed, Crawford said he was conscious at the place of the accident. It does not appear how long he had been conscious before his wife spoke to him. It is clear that he was when he did so, for she asked him if he knew her and he said yes. The expression "did they get that fellow” sounds like the spontaneous expression of a man returning to his senses, but as to the statement that he turned out to keep from hitting a man or to keep the man from hitting him, it is not shown at what period in the conversation it occurred, nor what was said to him to draw it forth. But, on the theory that it was not a part of the res gestae and therefore inadmissible as hearsay, did *78not the request to strike it out as hearsay and self-serving, come too late? Counsel waited until after a long answer had been given by the witness, and even then made no objection but did request that it be stricken out. The preliminary questions, including the question calling for the conversation, indicated clearly the nature of the answer sought, and' yet counsel for appellant sat still, making no objection until after the long answer had been given, concerning a conversation inquired about which could in no way be competent or relevant unless on the theory of res gestae, and then, when the statement of the injured man was found not to be what appellant desired, the request to strike out was made. It seems that this was too late. With this evidence remaining in the record unquestionably there was ample evidence from which the Commission could find that the accident arose out of his employment.
But even without this statement of the injured man, we think there was sufficient evidence to make it an issue of fact for the Commission to pass on. Mrs. Leonard’s testimony shows a car coming alongside Barlow’s car and a turning of his ear out to one side and then his collision with the tree. The evidence elsewhere in the record is that another car was “coming up the hill” and, as Fortieth Street sloped to the east, this car was coming from the opposite direction to that in which Barlow was going. There was no evidence whatever of anyone who saw Barlow in the throes of one of his spells. And the only evidence tending to impliedly show that Barlow said he was, was directly contradicted by Mrs. Leonard who said he never became conscious at the place of the accident. If Barlow was in such an attack at the time, doubtless his accident arose out of or because of that, and not out of his employment. And while the burden of proof was on claimant to produce evidence sufficient to make a prima facie case and thereby enable the Commission to find in her favor, nevertheless, when she had done so, the burden of going forward with the evidence to show that deceased was in one of his spells at the time, or that the- accident was caused thereby, was then on defendant, and this it failed to do. This, we think, conforms to and is not in conflict with the announcement made in Minton v. Driemaier S. & M. Co., 22 S. W. (2d) 61, 68, that . . . “the burden is on the claimant to establish that the injury was the result of an accident arising out of and in the course of the employment . . . ” The same case, at the page cited also notes the “rule that, when hearsay evidence or self-serving declarations are offered, a proper objection must be made thereto, for if the evidence is admitted without objection, it is to be considered and given its natural and probative effect as if it were in law admissible. [Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1128.] ”
In what has been said hereinbefore, in analyzing the evidence, we do not want to be understood as even attempting to pass on the *79weight or credibility of tbe evidence, but it was thus analyzed only to show what might very well be the view taken of it by the Commission, and that for this reason there is no substance to the contention that the Commission was without any substantial evidence to support its finding. The evidence necessary to support that finding created issues of fact and the Commission’s findings are therefore conclusive upon the court. It follows that the decision of the learned trial judge affirming the award of the Commission, must be, and is itself hereby, affirmed.
All concur.