Summary
In Durr's Dependents v. Schlumberger Oil Well Surveying Corporation, 227 Miss. 606, 86 So.2d 507, it was held that Durr's trip from Laurel to Brewton was his own personal mission, and, for that reason, his dependents were denied compensation.
Summary of this case from Wilson Furn. Co. v. WilsonOpinion
No. 40019.
April 9, 1956.
1. Workmen's Compensation — death — accident not arising in course of employment.
Where employee obtained permission from employer to be relieved from duty to make a trip to attend to some personal matters, and trip was made by employee in his own automobile and during trip he was killed in automobile accident, death was not result of an accident arising out of and in Course of employment within meaning of Act, though during return trip employee stopped at one of employer's places of business where employee had no duties and, unknown to him, certain records of employer were placed in employee's automobile for transportation to place where employee was employed. Sec. 6998-01, et seq., Code 1942.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
Cohn, Hobbs Hobbs, Brookhaven, for appellants.
I. The findings of fact of the Attorney-Referee as affirmed by the full Mississippi Workmen's Compensation Commission on appeal to it and the Circuit Court of the Second Judicial District of Jones County, Mississippi, on appeal to it, were contrary to the overwhelming weight of the evidence.
II. There was not such a substantial conflict in the evidence as to afford the aforesaid Attorney-Referee, Workmen's Compensation Commission and Circuit Court a reasonable basis for denying the claim of the appellants.
III. The aforesaid Attorney-Referee, Workmen's Compensation Commission and Circuit Court erred in finding as a matter of law that the death of Solon E. Durr, deceased, did not arise out of and in the course of his employment and that the claim of the appellants for workmen's compensation should be denied.
Collation of authorities: Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69, 75; Joe Ready's Shell Station Cafe v. Ready, 218 Miss. 80, 65 So.2d 268; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So.2d 316; Gilroy v. Standard Oil Co., 107 N.J.L. 170, 151 A. 598; Standard Oil Co. v. Smith (Wyo.), 111 P.2d 132; Barmore v. Vicksburg, S. P. Ry. Co., 85 Miss. 426, 38 So. 210; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737, 174 So. 550; Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So.2d 896; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Vestal Vernon Agency v. Pittman, 219 Miss. 570, 69 So.2d 227; Lewis v. Knappen Tibbets Abbett Engineering Co., 304 N.Y. 461, 108 N.E.2d 609; Wickham v. Glenside Woolen Mills, 252 N.Y. 11, 12, 168 N.E. 446; Wiltrout v. General Elec. Realty Corp., 279 App. Div. 1125, 112 N.Y.S.2d 525, 110 N.E.2d 505; De Santis v. U.S.O. Camp Shows, Inc., 88 N.Y. Supp.2d 732,
275 App. Div. 880, 299 N.Y. 798, 87 N.E.2d 689; Blake v. Grand Union Co., 98 N.Y. Supp.2d 738, 277 App. Div. 914, 301 N.Y. 813, 95 N.E.2d 57; Majure v. William H. Alsup Assocs., 216 Miss. 607, 63 So.2d 113; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 6; Allison v. Brown Horsch, 98 N.H. 434, 102 A.2d 493; Strauss v. Industrial Comm. (Ariz.), 240 P.2d 550; Delk v. Industrial Comm. (Ariz.), 249 P.2d 943; White v. Sindlinger, Inc. (N.J.), 105 A.2d 437; Vol. I, Larson's Workmen's Comp. Law, Secs. 18.12, 19.00, 19.27, 19.32, 24.23, 27.00, 27.11, 27.12, 27.14, 31.25, 33.30; 25 Mississippi Law Journal, pp. 109, 118.
Watkins Eager, Jackson, for appellees.
I. The injury to appellants' decedent did not arise in the course of his employment. Allison v. Brown Horsch (N.H.), 102 A.2d 493; American Surety Co. v. Cooper, 222 Miss. 429, 76 So.2d 254; Armstrong Cork Co. v. Sheppard, 222 Miss. 359, 76 So.2d 225; Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Barmore v. Vicksburg, S. P. Ry. Co., 85 Miss. 426, 38 So. 210; Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; Cardwell v. Industrial Comm. (Ohio), 99 N.E.2d 306; Chetney v. Manning (N.Y.), 6 N.E.2d 105; Delk v. Industrial Comm., 249 P.2d 943; Dille v. Aaron Carlson Co. (Minn.), 48 N.W.2d 564; Dooley v. Smith's Transfer Co. (N.J.), 57 A.2d 554; Dowdle Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So.2d 277; Guivarch v. Maryland Cas. Co., 37 F.2d 268, 74 L.Ed. 1163; International Shoe Co. v. Harrison, 217 Miss. 152, 63 So.2d 837; Kennedy v. American Natl. Ins. Co. (Tex.), 107 S.W.2d 364; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Oklahoma Natl. Gas Corp. v. Union Bank Trust Co. (Okla.), 299 P. 159; Stevens v. Stanford, 226 Miss. 828, 85 So.2d 187; Strauss v. Industrial Comm. (Ariz.), 240 P.2d 550; Thornton v. Louisiana-Mississippi Pipe Line Constr. Co., 214 Miss. 314, 58 So.2d 795; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So.2d 316; Warren v. Society Girl Foundations, Inc., 128 N.Y.S.2d 216; White v. Sindlinger, Inc. (N.J.), 105 A.2d 437; Sec. 4, Workmen's Compensation Act; 5 Am. Jur. 728-29; Larson's Workmen's Comp. Law, Secs. 1511, 19.00, 19.32.
II. The presence in the car of old closed files, there without the knowledge or consent of Durr or without any intent upon his part to perform even an incidental task for the employer, was not in any sense a concurrent factor in inducing the travel and was not an essential concurrent service being performed for the employer. Dauphine v. Industrial Acc. Comm., 57 Cal.App.2d 949, 135 P.2d 644; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737, 174 So. 550; Eby v. Industrial Acc. Comm., 242 P. 901; Eyman v. Industrial Comm. (Ohio), 16 N.E.2d 502; International Shoe Co. v. Harrison, supra; Irwin-Neisler Co. v. Industrial Comm., 54 Ill. 456, 178 N.E. 357; Levy v. Levy's Bazaar, 257 App. Div. 885, 12 N.Y.S.2d 131; Marks Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 225 A.D. 714, 231 N.Y.S. 812; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Pilkington v. State Highway Dept. (N.J.), 10 A.2d 489; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Repstine v. Hudson Oil Co. (Kan.), 126 P. 225; Ridout v. Roses' 5-10-25 Cent Store, 205 N.C. 423, 171 S.E. 642; S. W. Constr. Co. v. Bugge, 194 Miss. 822, 13 So.2d 645; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Standard Oil Co. v. Smith (Wyo.), 111 P.2d 132; Vestal Vernon Agency v. Pittman, 219 Miss. 570, 69 So.2d 227; A.L.I., Restatement of the Law (Agency), Sec. 236; Larson's Workmen's Comp. Law, Secs. 18.11, et seq., 18.14, 19.27; Vol. VII, Schneider's Workmen's Comp. Text, Secs. 1690-1963.
III. There is no other theory under which the fatal injury to Durr could be said to be compensable.
A. The injury was not compensable on the theory that Durr was voluntarily helping a fellow employee at the latter's job.
B. Durr cannot be brought within the exception that under some circumstances an "on call" employee, in the sense of an employee on twenty-four hour duty and required to live on the premises, can secure compensation for injuries occurring off the premises.
C. There is no presumption here that Durr at the time of the accident was within the course of his employment.
Collation of authorities: Ferguson v. Sohio Petroleum Co., 225 Miss. 24, 82 So.2d 575; Halloway v. Halloway, 189 Miss. 723, 198 So. 738; Majure v. William H. Alsup Assocs., 216 Miss. 607, 63 So.2d 113; Moug v. Workmen's Comp. Bureau (N.D.), 297 N.W. 129; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 6; Redmond v. Marshall, 162 Miss. 359, 137 So. 733; Welch v. Aetna Casualty Surety Co., 7 S.E.2d 85.
APPELLANTS IN REPLY.
I. If the fatal journey can be laid outside of the decedent's sphere of duty, which we deny, then it was undertaken in the spirit of action above and beyond the call of duty and solely in the interests of the employer to the extent and with the result that his death should be compensable. Allison v. Brown Horsch (N.H.), 102 A.2d 493; Associated Indemnity Co. v. Bush, 201 F.2d 843; Clynes v. Dobler Brewing Co., 136 N.Y.S.2d 525; Chetney v. Manning, 6 N.E.2d 105; Cardwell v. Industrial Comm., 99 N.E.2d 306; Dille v. Aaron Carlson Co., 48 N.W.2d 564; Gray v. The Daily News, 134 N.Y.S.2d 448; Guivarch v. Maryland Casualty Co., 37 F.2d 268; Gaytan Engineering Co. v. Industrial Acc. Comm. (Cal.), 213 P.2d 737; International Shoe Co. v. Harrison, 217 Miss. 152, 63 So.2d 837; Ingraham v. Lane Constr. Corp., 139 N.Y.S.2d 347; Jordan v. Dixie Chevrolet Co. (S.C.), 61 S.E.2d 654; Kwitkowski v. Charles E. Wilson Memorial Hospital, 96 N.Y.S.2d 871; Kuharski v. Bristol Brass Corp. (Conn.), 46 A.2d 11; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Livingston v. State Ind. Acc. Comm. (Oregon), 266 P.2d 684; Lunn v. Columbian Steel Tank Co. (Mo.), 275 S.W.2d 298; Lockheed Aircraft Corp. v. Industrial Acc. Comm. (Cal.), 172 P.2d 1; Marks v. Gray, 231 N.Y.S. 812; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Oklahoma Natural Gas Corp. v. Union Bank Trust Co., 299 P. 159; Phoenix Indemnity Co. v. Willard (N.Y.), 130 F. Supp. 657; Standard Oil Co. v. Smith (Wyo.), 111 P.2d 132; Serrano v. Industrial Comm. (Ariz.), 256 P.2d 709; S. W. Constr. Co. v. Bugge, 194 Miss. 822, 13 So.2d 645; Thornton v. Louisiana-Mississippi Pipe Line Constr. Co., 214 Miss. 314, 58 So.2d 795; United Novelty Co. v. Daniels (Miss.), 42 So.2d 395; Voehl v. Indemnity Ins. Co., 288 U.S. 162, 77 L.Ed. 676, 53 S.Ct. 38; Warren v. Society Girl Foundations, Inc., 128 N.Y.S.2d 216; Wilson v. Rowan Drilling Co. (N.M.), 227 P.2d 365; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So.2d 316; 6 N.A.C.C.A. Law Journal 64; 7 N.A.C.C.A. Law Journal 77; 13 N.A.C.C.A. Law Journal 27-33; 14 N.A.C.C.A. Law Journal 37-46; Vol. I, Larson's Workmen's Comp. Law, Secs. 16.11, 16.20, 18.10, 19.25, 27.14, 31.25.
Appellants' decedent, Solon E. Durr, was killed in an automobile accident, and claim was made for benefits under the Workmen's Compensation Act. The claim was denied by the attorney-referee, the full commission, and the circuit court, and appellants appeal here.
Durr was employed by the Schlumberger Oil Well Surveying Corporation at Brewton, Alabama. The employer maintained various places of business including one at Laurel, Mississippi. Durr obtained from the manager of the Brewton, Alabama station, who was Durr's superior, permission to be relieved of duty on special leave to attend to some personal matters. No time limit was placed on the time Durr could be off duty. Pursuant to this arrangement, Durr left Brewton on Thursday, February 19, 1953, to take his wife and some of her belongings to Brookhaven, Mississippi. Durr used his personal automobile to make the trip. Under company rules, this automobile was not to be used for any business of the employer. Durr and his wife arrived at Brookhaven about 2:30 o'clock A.M. on Friday, February 20, where Durr slept for a few hours. He left Brookhaven about 11:00 o'clock A.M. Friday and drove to Laurel, Mississippi, where he arrived during the afternoon. Durr had no duties to perform at or near Laurel and was not subject to orders from anyone at the Laurel office of his employer, but he was in and around the Laurel office during the afternoon. Part of this time was spent with one Minninger, the senior operator from the Brewton Station, who had come to Laurel to return to Brewton a truck previously brought to Laurel by Durr and another for repairs. Minninger did not accept Durr's offer to assist in driving the truck back to Brewton. Durr was under no orders to report to the Laurel office, and his visit there was voluntary on his part. Durr was with Minninger when the truck was released from the garage about 7:00 o'clock P.M., and Durr assisted Minninger in backing the truck out of the garage by watching to see that he did not back into something. That was the last time anyone saw Durr alive. He was killed in an accident while driving his personal car about six miles south of Laurel at 2:00 A.M., Saturday morning, February 21, 1953, and while enroute from Laurel to Brewton.
Sometime prior to the dates mentioned, the manager of the Brewton Station had instructed Minninger to bring from Laurel to Brewton some old files that belonged in the Brewton office. Minninger was instructed to bring them at some convenient time when the files had been gotten together at the Laurel office. The files were not current and did not relate to current work. These files had been placed in a box by an employee of the Laurel office, and on Friday while Durr was in Laurel, Minninger secured the files from the Laurel office to take to Brewton, but instead of putting them in the truck he was to drive back to Brewton, he placed them in Durr's personal automobile, thinking that that would be a cleaner method of taking them to Brewton. He did not tell Durr that he put the files in his automobile, and as far as he knew, Durr did not know the files were in his automobile. These files were in Durr's automobile when the accident occurred in which Durr was killed.
The sole question in this case is whether Durr's death arose out of or in the course of his employment. Several contentions are made by appellants in this connection, but the only one worthy of comment is whether the presence of the company files in Durr's automobile was such a circumstance that the case is compensable under the dual purpose doctrine.
(Hn 1) Durr had traveled in his personal automobile from Brewton to Brookhaven, thence to Laurel, where he spent several hours in and around the Laurel office of his employer. But he was under no orders to report to Laurel, had no duty to perform there, and his visit to Laurel enroute to Brewton was purely voluntary on his part. His whole trip was to accomplish a personal mission, and he had obtained special leave to be away from his work for an indefinite time, limited as to time only by the necessities of his personal affairs. Durr was unaccounted for during the time that elapsed from the time Minninger saw him about 7:00 P.M. Friday until he was killed at 2:00 A.M. Saturday, about nine hours. His duty status would not begin until he returned to Brewton.
"All of these widely-assorted (dual purpose) problems can best be solved by the application of a lucid formula stated by Judge Cardozo in Marks v. Gray — a formula which, when rightly understood and applied, has never yet been improved upon. Judge Cardozo said: `A servant in New York informs his master that he is going to spend a holiday in Philadelphia, or perhaps at a distant place, at San Francisco or at Paris. The master asks him while he is there to visit a delinquent debtor and demand payment of a debt. The trip to Philadelphia, the journey to San Francisco or to Paris, is not a part of the employment. A different question would arise if performance of the service were to occasion a detour, and in the course of such detour the injuries were suffered . . .
"`We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled . . . The test in brief is this: If the work of the employee creates a necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his on . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.'" Larson's Workmen's Compensation Law, Vol. 1, Sec. 18.12, page 241.
Since Durr had to get back to Brewton before his special leave ended, and before his personal mission was completed, we must conclude, as did the attorney-referee and commission, that the sole motivation for the travel from Laurel to Brewton was Durr's personal mission. The presence of the files in his automobile was of some benefit to the employer, but it was merely incidental. The sole purpose of the trip was personal to Durr. The files had nothing to do with creating the necessity for the trip. The travel and the risks were personal.
The conclusion reached by the attorney-referee and the commission was supported by the overwhelming weight of the evidence.
Affirmed.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.