The most that can properly be said here is that the question was one of fact rather than of law, which question has been resolved by the commission against petitioners. The language used in affirming the denial of a claim in Lunde v. Congoleum-Nairn, Inc., 211 Minn. 487 [ 1 N.W.2d 606], appears germane to the present discussion. It was there said at page 607 [1 N.W.2d]: "Basically, the argument for relator is wrong in its seeming assumption that factors of time and place are decisive.
But travel by an employe for his own purposes after working hours or in digression from the prosecution of the employer's business is not covered by the act. Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606; Cavilla v. Northern States Power Co. supra. This is the rule also in the case of the salesman with a roving commission. See Erickson v. Erickson Co. 212 Minn. 119, 2 N.W.2d 824; Reinhard v. Universal Film Exch. Inc. 197 Minn. 371, 267 N.W. 223; Kayser v. Carson Pirie Scott Co. 203 Minn. 578, 282 N.W. 801; and Lunde v. Congoleum-Nairn, Inc. supra, where the court said, 211 Minn. 488, 1 N.W.2d 606:
Case followed. Certiorari upon the relation of Warren W. Foster, employe, to review an order of the industrial commission denying his claim for compensation for an accidental injury against Aetna Insurance Company, employer, and Travelers Insurance Company, insurer. Affirmed, following Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606. Maugridge S. Robb, for relator.
The board's award is affirmed. Williams v. Hoyt Const. Co. Inc. supra; Gumbrill v. General Motors Corp. 216 Minn. 351, 13 N.W.2d 16 (1944); Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606 (1942). Respondent is allowed $350 attorneys fees on this appeal.
The two rules are used almost interchangeably by the courts, however. See, Gumbrill v. General Motors Corp. 216 Minn. 351, 13 N.W.2d 16 (1944); Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606 (1942). For a general discussion, see Lunde v. Congoleum-Nairn, Inc. supra; Gumbrill v. General Motors Corp. supra.
It is conceded by appellant that Mr. Oates, after attending to some personal matters in Little Rock, was on the direct road returning from Little Rock to Perry at the time of the mishap; but appellant insists that Mr. Oates' presence at the sales meeting was required the same as was the attendance of the three other salesmen, who were residents of Little Rock and that under the "going and coming rule" the employee is not covered by the Workmen's Compensation Law for injuries occurring en route to the place of business. In addition to the cases from our own State — hereinafter to be mentioned — appellant cites such cases as Postal Telegraph Cable Co. v. Industrial Accident Comm., 1 Cal.2d 730, 37 P.2d 441, 96 A.L.R. 460; Convey-Ballard Motor Co. v. Industrial Comm., 64 Utah 1, 227 P. 1028; Lunde v. Congoleum-Nairn Co., 211 Minn. 487, 1 N.W.2d 606; and Dooley v. Smith Trans. Co., 26 N.J. Misc. 129, 57 A.2d 554. For an injury to an employee to be compensable under the Arkansas Workmen's Compensation Law the injury must, among other essentials, arise "out of and in the course of the employment"; and as regards most workers, injuries sustained in going to or returning from work are held to be non-compensable.
But that on the fateful journey at night which brought about his unfortunate and untimely death he was engaged in a mission of any sort for his employer there can be only speculation and conjecture. There is no proof of any sort upon which to base an inference. Lunde v. Congoleum-Nairn, Inc., 211 Minn. 487, 1 N.W.2d 606. Other questions are raised and argued but with the conclusion there can be no recovery, it becomes unnecessary to decide any of them. It follows from what has been said that the judgment must be reversed. It will be remanded to the district court with a direction to set aside the judgment reviewed and enter another in its stead dismissing the plaintiff's cause of action.
In a number of cases we have so held. Confusion has apparently resulted from the application of the dominant-purpose test in Olson v. Trinity Lodge, 226 Minn. 141, 146, 32 N.W.2d 255, 258, wherein we said: Fox v. Atwood-Larson Co. 203 Minn. 245, 280 N.W. 856; Erickson v. Erickson Co. 212 Minn. 119, 2 N.W.2d 824; Kayser v. Carson Pirie Scott Co. 203 Minn. 578, 282 N.W. 801; State ex rel. Niessen v. District Court, 142 Minn. 335, 172 N.W. 133; Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606; Engsell v. Northern Motor Co. 174 Minn. 362, 219 N.W. 293; Callaghan v. Brown, 218 Minn. 440, 16 N.W.2d 317; Bellman v. Northern Minn. Ore Co. 167 Minn. 269, 208 N.W. 802 See, Matter of Marks v. Gray, 251 N.Y. 90, 167 N.E. 181.
Relator's theory is that because he was a traveling insurance salesman the trip which he took from the parking lot to the store was incidental to his employment, and for that reason he was within the compensation act. That theory has been advanced in several of our cases. Thus, in Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 488, 489, 1 N.W.2d 606, 607, we said: "Such argument assumes that it is impossible for a traveling man, even though he be otherwise and mostly engaged on his employer's business, to so depart therefrom on an enterprise of his own as to put him for the time being beyond coverage of the law.
Clearly, it is not necessary that the evidence in support of the inference adopted must outweigh other reasonable inferences so as to demonstrate their impossibility. See, Sherman v. Minnesota Mut. L. Ins. Co. 191 Minn. 607, 255 N.W. 113; 23 Minn. L.Rev. 78; Schoewe v. Winona P. G. Co. 155 Minn. 4, 191 N.W. 1009; Maher v. Duluth Yellow Cab Co. 172 Minn. 439, 215 N.W. 678; Smith v. Mason Bros. Co. 174 Minn. 94, 218 N.W. 243; Austin v. Leonard, Crossett Riley, Inc. 177 Minn. 503, 225 N.W. 428; Tomhave v. Galena, 180 Minn. 289, 230 N.W. 652; Reinhard v. Universal Film Exchange, Inc. 197 Minn. 371, 267 N.W. 223; Hill v. Umbehocker, 201 Minn. 569, 277 N.W. 9; Paine v. Gamble Stores, Inc. 202 Minn. 462, 279 N.W. 257, 116 A.L.R. 407; Lunde v. Congoleum-Nairn, Inc. 211 Minn. 487, 1 N.W.2d 606; National Pole Treating Co. v. Gilkey, 182 Minn. 21, 233 N.W. 810. The evidence in this case preponderantly supports the inference relied upon by the industrial commission in its findings, and therefore the findings must be upheld.