Opinion
No. 42398.
October 8, 1962.
1. Workmen's compensation — personal mission — accidental injury not arising out of or in course of employment.
Evidence that claimant drove to a certain city to accomplish personal mission of obtaining his automobile, which had been left in the city for repairs, and returning it to territory in which he worked sustained finding that claimant, who was injured in an automobile accident on return trip to his territory, did not sustain an accidental injury arising out of and in the course of his employment, even though while in city in which he picked up his automobile he looked over some policies, collected a premium, and discussed a permanent plan of insurance with a party he had sold a policy on a prior occasion.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, J.
Butler, Snow, O'Mara, Stevens Cannada, Dan McCullen, Jackson, for appellant.
I. The full Commission, not the Circuit Court, is the trier of facts, and if the Commission order is supported by substantial evidence, it is error for the Circuit Court to reverse same and to substitute its own finding of facts. If the Commission order is supported by substantial evidence, the appellate courts are nevertheless bound thereby even though the appellate courts may have rendered a contrary opinion on the same set of facts. Allen v. Westinghouse Electric Co. (Miss.), 118 So.2d 869; American Surety Co. v. Cooper, 222 Miss. 429, 76 So.2d 254; Anderson v. Ingalls Shipbuilding Corp., 229 Miss. 670, 91 So.2d 756; Barry v. Sanders Co., 211 Miss. 656, 52 So.2d 493; Boyd Construction Co. v. Worthy, 234 Miss. 671, 107 So.2d 120; Brown Buick Co. v. Smith's Estate (Miss.), 52 So.2d 664; Bryan Bros. Packing Co. v. Decker (Miss.), 139 So.2d 390; Bryan Bros. Packing Co. v. Murrah's Dependents, 234 Miss. 494, 106 So.2d 675; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Capitol Broadcasting Co. v. Wilkerson, 240 Miss. 64, 126 So.2d 242; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Cudahy Packing Co. v. Ward, 241 Miss. 595, 130 So.2d 858; Dillon v. Gasoline Plant Construction Corp., 222 Miss. 10, 75 So.2d 80; Dowdle Pearson v. Hargrove, 222 Miss. 64, 75 So.2d 277; Durr's Dependents v. Schlumberger Oil Well Surveying Corp., 227 Miss. 606, 86 So.2d 507; Ed Bush Sandwich Shop v. Strauss, 243 Miss. 507, 138 So.2d 741; Fair Stores v. Bryant, 238 Miss. 434, 118 So.2d 295; Fischer v. Gloster Lumber Builders Supply Co. (Miss.), 57 So.2d 871; Fondren v. Fortenberry Drilling Co., 233 Miss. 210, 101 So.2d 654; Freeman v. Mississippi Power Light Co., 230 Miss. 396, 92 So.2d 658; Gaines v. McCormick, 238 Miss. 535, 117 So.2d 467; Griffin v. Moore Sheet Metal Works (Miss.), 136 So.2d 625; Grubbs v. Revell Furniture Co., 234 Miss. 391, 106 So.2d 390; I.B.S. Manufacturing Co. v. Dependents of Cook, 241 Miss. 256, 130 So.2d 557; Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 104 So.2d 296; Jackson Oil Products Co. v. Curtis, 241 Miss. 188, 129 So.2d 403; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 678; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Mississippi Products, Inc. v. Skipworth, 238 Miss. 312, 118 So.2d 345; New Orleans Furniture Manufacturing Co. v. Smith (Miss.), 133 So.2d 631; Parker v. United Gas Corp., 240 Miss. 351, 127 So.2d 438; Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Rivers Construction Co. v. Dubose, 241 Miss. 527, 130 So.2d 865; Ross v. Ross, 240 Miss. 84, 126 So.2d 512; Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So.2d 544; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Stevens v. Stanford, 226 Miss. 828, 85 So.2d 187; Sullivan v. C. S. Poultry Co., 234 Miss. 126, 105 So.2d 558; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 159; Thornton v. Magnolia Textiles (Miss.), 55 So.2d 172 Town of Mendenhall v. Grubbs' Dependents (Miss.), 134 So.2d 158; United Funeral Homes v. Culliver, 240 Miss. 878, 128 So.2d 479; Valley Dry Goods v. Odom, 244 Miss. 125, 141 So.2d 254; Wallace v. Copiah County Lumber Co., 223 Miss. 90, 77 So.2d 316; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141.
II. A traveling employee is not in the course of his employment when traveling from his sales territory to a distant town for reasons personal to the employee and not connected with his employment, even though he may perform some incidental or trivial task for his employer while in the distant town. The test is whether the dominant purpose of the trip was personal or business and whether if the personal reason were cancelled the trip would still have been made for the business purpose. Barragar v. Industrial Commission of Wisconsin, 205 Wis. 550, 238 N.W. 368, 78 A.L.R. 679; Bryan Bros. Packing Co. v. Murrah's Dependents, supra; Children's Bureau v. Nissen, 3 Ter. (Del.) 209, 29 A.2d 603; Dowdle Pearson v. Hargrove, supra; Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79 So.2d 825; Durr's Dependents v. Schlumberger Oil Well Surveying Corp., supra; Jinks v. Burton Sutton Oil Co. (La.), 44 So.2d 343; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Mahoney v. Michaels Stern Co., 193 N.Y.S.2d 106; Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Wilson Furniture Co. v. Wilson, supra; 1 Larson's Workmen's Compensation, Secs. 18.10, 18.14, 19.24.
Crisler, Crisler Bowling, Jackson, for appellee.
I. Cited and discussed the following authorities. Clynes v. Dobler Brewing Co., 136 N.Y.S.2d 525; Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 666; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So.2d 574; 32 C.J.S., Evidence, Sec. 1038 pp. 1089-1093; 1 Larson's Workmen's Compensation, Sec. 19.29.
Appellee filed claim before the Workmen's Compensation Commission. The claim was denied by a unanimous ruling of the Commission. Appellee appealed to the Circuit Court of the First Judicial District of Hinds County. The Commission was reversed and the claim allowed, from which finding of the circuit court appellants appeal.
Appellee's home was in Jackson, Mississippi. In April 1960, he was employed as District Manager for National Bankers' Life Insurance Company, stationed at Greenville, Mississippi, and his territory consisted of certain counties in and around Greenville. Hinds County was not in his territory although he was permitted to write insurance anywhere.
He was required to supply his own automobile and to pay his own traveling expenses.
He was injured in Hinds County, Mississippi, on April 28, 1960. On Saturday, April 23, 1960, the claimant came from Greenville to Jackson to spend the weekend with his family. His car broke down at Bentonia, and after being brought to Jackson it was necessary to leave it to be repaired. On Saturday, April 23, he sold a 10-year term policy to one Schmidt in Jackson, collected $10.20 premium, and on the following Monday reported the sale. He was informed that he did not collect enough premium. On Wednesday, April 27, he caught a bus in Greenville and came to Jackson. He brought his brief case with him, and while at home undertook to familiarize himself with certain form policies. On arriving in Jackson, he called the garage where his car was being repaired and was informed that he could pick up the car after prayer meeting that night. He watched television until approximately 11 o'clock P.M., then went down to get his car. After getting the car, he went to a service station for gas, then traveled to Schmidt's place to collect the rest of the premium, something over $1.00. This balance on the premium belonged to the claimant, he having paid the company all that was due on the policy. He did collect the additional premium and mentioned to Schmidt a permanent plan of insurance. Thereafter, he returned to the regular and direct route from the filling station to his home, and had the accident in which he received the injuries involved.
The Commission found that the injuries sustained did not arise out of and in the course of his employment. The circuit court was of the opinion that it was a compensable case under Thrash v. Jackson Auto Sales, 232 Miss. 845, 100 So.2d 574.
The claimant testified that he would not have made the trip from Greenville to Jackson to try to sell an insurance policy; that he would not have made the trip to collect the balance of the premiums; that if he had not been picking up his car in Jackson that afternoon, he would not have come to Jackson.
The question here is whether claimant's injuries arose out of or in the course of his employment. It is contended that because he looked over some policies, collected a premium, and discussed a permanent plan of insurance with Schmidt, that it did. The proof shows by the testimony of the claimant himself that his whole trip was to accomplish a personal mission — that is, to obtain his car and return it to Greenville. In Durr's Dependents v. Schlumberger Oil Well Surveying Corporation, et al., 227 Miss. 606, 86 So.2d 507, this Court adopted the following statement from Vol. 1, Sec. 18.12, page 241, Larson's Workmen's Compensation Law:
"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 own, . . . . 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'."
As heretofore stated, the automobile was the personal property of claimant and the company paid no part of the cost of operation thereof. The claimant testified the trip would not have been made, except to secure the car.
(Hn 1) Under these circumstances we believe the Commission was amply justified in finding from the evidence that the claimant did not sustain an accidental injury arising out of and in the course of his employment. We think the Thrash case is distinguishable on the facts. The case is therefore reversed and the order of the Workmen's Compensation Commission reinstated.
Reversed and order of Workmen's Compensation Commission reinstated.
McGehee, C.J., and Kyle, Gillespie and McElroy, JJ., concur.