Opinion
No. 25511
February 19, 2004
Appeal from the Labor Industrial Relations Commission.
James B. Kennedy, for Appellants' attorney.
John S. Cullinane, for Respondents' attorney.
On November 10, 2003, this court issued an opinion in this cause. On January 27, 2004, by order of the Supreme Court of Missouri, the cause was transferred to that court. That same day, the Supreme Court of Missouri ordered the cause retransferred to this court for reconsideration in light of Hampton v. Big Boy Steel Erection , 121 S.W.3d 220 (Mo. banc 2003). Having considered the holding in Hampton , the following opinion is adopted by this court.
Crest Foam Corporation (employer) and Continental Casualty Company/RSKCo. (insurer) appeal an award of the Labor and Industrial Relations Commission (the commission) that awarded death benefits to Lynda Marie Tanner, surviving spouse of Gregory L. Tanner (employee), and Megan R. Tanner and Alan G. Tanner, surviving dependents of employee. This court reverses the award and remands with directions that the commission enter an award denying benefits.
Employee was a territory sales manager for employer. His job was to sell carpet pad to retailers within an assigned sales territory. Employee's sales territory consisted of eastern Missouri north of Cape Girardeau and southern Illinois. Most of employee's customers were in St. Louis. His primary duty was developing the market for employer's product in the St. Louis area. He had been requested to move to St. Louis in early 1997. He and his family were planning to make that move.
Employer did not establish set hours for employee or set a work schedule for him. However, employee was expected to make eight "calls" per day. Calls could be made on established customers or potential customers.
Employee was not provided an office or a company vehicle. He used his personal vehicle to call on customers. He used the same vehicle for personal use. He was not reimbursed for travel expenses incurred in his work. He was provided an 800-voice-mail number for use in communicating with customers and his employer. Employee carried carpet pad samples, his brief case, a cell phone, and paper work in his vehicle at all times, even when he used the vehicle for non-work-related purposes.
On the morning of December 2, 1996, employee made telephone calls from his residence in Jackson, Missouri. Telephone records revealed that he called employer's 800 number. He left his residence at approximately 9:30 a.m. He told his wife he was going to the Fredericktown and Farmington area to make calls. He was dressed in a dress shirt, coat, and tie when he left the residence.
At approximately 1:30 p.m., employee was killed in a one-vehicle accident on ZZ Highway near Glen Allen, Missouri. A passenger in his vehicle, Lloyd Kelly Mims, was also killed in the accident. Toxicology reports revealed that at the time of employee's death, his blood alcohol content was 0.162 percent, more than twice the current legal limit for operating a motor vehicle, and Mr. Mims' blood alcohol content was 0.333 percent.
The offense of driving with excessive blood alcohol content occurs when a person operates a vehicle with 0.08 percent alcohol in his or her blood. § 577.012.1, RSMo 2000. At the time of employee's accident, the offense occurred when a person operated a vehicle with 0.10 percent alcohol in his or her blood. See § 577.012.1, RSMo. Cum.Supp. 1996.
Employee's wife, Lynda Marie Tanner, was asked about employee's relationship with Mr. Mims. She testified that employee had known Mr. Mims two or three years. She said employee and Mr. Mims had been in contact with one another within the week preceding the accident. She said employee and Mr. Mims usually went fishing when they were together. Mrs. Tanner was asked if employee and Mr. Mims usually drank alcohol when they were together. She answered, "Yes."
Mrs. Tanner was asked if she knew whether Kelly Mims was employed. She answered, "Not that I know of." She was asked, "To your knowledge, Kelly Mims had no interest in any kind of carpet business or flooring company or hardware store or anything of that nature?" She answered, "Correct." She was asked the following questions and gave the following answers regarding her husband's relationship with Mr. Mims:
Q. According to your deposition testimony, you stated that you didn't think very highly of Mr. Mims, is that a fair statement?
A. Yes.
Q. You didn't think he was very good company for your husband, is that correct?
A. Yes.
. . .
Q. . . . Your reservations about Mr. Mims, did they relate to the fact or did they have something to do with alcohol?
A. I guess so. I mean —
Q. Had you ever known [employee] to drink on a weekday while he was making or between sale calls?
A. No.
The commission's final award allowing compensation states:
Employee set his own hours, his vehicle was his office, and he was required to make at least eight customer calls a day. It is not unreasonable that he had and was in the process of making calls within his sales territory on December 2, 1996, when he was killed in an automobile accident. While it is true that employee and his passenger, Mr. Mims, consumed alcohol prior to the accident, it does not negate the fact that employee was traveling in his sales territory at the time of his death.
The Commission agrees that a traveling salesman's mere presence in his sales area, when the accident or injury occurs, does not, in itself, entail that the employee was working in the course and scope of his employment.
The award then stated there were other "objective indicia" pointing to the fact that employee was within the course and scope of his employment. The "objective indicia" the commission relied on included that employee was required to make at least eight customer calls a day; that employee indicated to his spouse when he left home the morning of the accident that he was going to call on customers; that there was "sufficient evidence . . . to conclude that employee had called on at least one customer in Bollinger County" before the accident; and employee left his home dressed in a white shirt and tie. The commission's award states, "When these facts are combined, they lead the Commission to conclude that employee left work [sic] that day to call on customers. Employee had not deviated from the area where employer permitted him to call on current and potential clients."
In considering appeals from the commission, this court reviews only questions of law. It may modify, reverse, remand for rehearing, or set aside an award only on the following grounds:
(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;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.
§ 287.495.1, RSMo 1994.
Employer and insurer argue that the commission erred as a matter of law in allowing compensation "because the facts found by the commission do not support the award and there was not sufficient competent evidence in the record to warrant the making of the award." In their single point on appeal, employer and insurer state three bases, identified as A, B and C, for their claim that there was not sufficient competent evidence to warrant the making of the award.
In its review, this court determines whether, considering the whole record, there is sufficient, competent evidence and substantial evidence to support the commission's award. Hampton , 121 S.W.3d at 223.
The burden is on claimant to prove [the] injury arose out of and in the course of employment. McClain v. Welsh Co., 748 S.W.2d 720, 724 (Mo.App. 1988). "Arising out of" means that a causal connection exits [sic] between an employee's job duties and the injury. Auto. Club Inter-Insurance Exch. v. Bevel, 663 S.W.2d 242, 245 (Mo.banc 1984). "In the course of employment" refers to the time, place and circumstances of an employee's injury. Id.
Johnson v. Evans Dixon , 861 S.W.2d 633, 635 (Mo.App. 1993).
The first basis, Point IA, contends that claimants failed to prove employee's death arose out of and in the course of his employment; that claimants "failed to establish a sufficient nexus between his job as a commission only carpet padding salesman and his death at 1:30 p.m. while legally intoxicated and while in the company of a more heavily intoxicated social friend." Employer and insurer contend "the time, location and circumstances of the accident establish that no purpose of the employer was being served, and no benefit to the employer was being conferred, when [employee], while intoxicated, drove his personal automobile off of Highway ZZ and was killed."
The commission stated factors on which it concluded that the accident that claimed employee's life arose out of his employment and occurred in the course of that employment. Although the commission acknowledged that a traveling salesman's mere presence in his sales area does not manifest the determination that he was working in the course and scope of his employment, the commission found that because employee was required to make eight customer calls per day and was within his sales territory when the accident occurred, it was not unreasonable that employee "had and was in the process of making calls within his sales territory" when he was killed in the automobile accident. Other "objective indicia" on which the commission relied in finding employee was working in the course and scope of his employment was that employee left home that morning "after indicating to his spouse that he was going out to call on customers." The commission observed that there was "sufficient evidence in the hearing record to conclude that employee had called on at least one customer in Bollinger County." It further observed "employee left his home dressed in a white shirt and tie."
The evidence the commission determined was sufficient to permit it to conclude employee called on at least one customer in Bollinger County prior to his accident was not chronicled. The award did not reveal the identity of the customer on which employee may have called.
This court holds that the commission's award was clearly contrary to the overwhelming weight of the evidence. There was evidence that employee indicated he was going to the Fredericktown/Farmington area to call on customers. However, although the evidence disclosed one could get to that area from the location where the accident occurred, the evidence adduced disclosed that was not the customary and usual route employee would have expected to follow to get to that area.
There was evidence that the passenger in employee's vehicle, whose blood alcohol content was 0.333 percent, had no interest in any carpet or flooring business or hardware store that could have been a customer of employee. To the contrary, the evidence was that the relationship between employee and his passenger, Mr. Mims, was a social relationship that usually resulted in the two drinking alcohol together. Employee's wife testified that she did not consider Mims good company for employee. She also stated she had never known employee to drink on a weekday while he was making sales calls or was between sales calls. "Whether an accident and the consequent injury arose out of and in the course of employment is ultimately a question of law." Garrett v. Industrial Commission , 600 S.W.2d 516, 519 (Mo.App. 1980). This court concludes the overwhelming weight of the evidence that was before the commission requires the finding that the injury that produced employee's death did not arise out of or in the course of his employment.
In arguing the award should be affirmed, respondents, employee's surviving spouse and dependents, call this court's attention to Bridges v. Reliable Chevrolet, Inc. , 940 S.W.2d 51 (Mo.App. 1997). The claimant in Bridges was fleet manager for a new car dealership. He had no fixed schedule and his responsibilities included making sales calls, deliveries and service calls. Although not required to obtain approval to leave his employer's business premises during regular business hours, Mr. Bridges was required to follow a procedure whereby the telephone switchboard operator would log him in and out when he would go to and from the business premises.
On January 3, 1995, Mr. Bridges logged out from his employer's business premises at 11:25 a.m. At approximately 3:00 p.m., the company-owned car he was driving was involved in an accident when another car pulled through an intersection on a four-lane road into Mr. Bridges' path. Although he avoided hitting the car that pulled into his path, Mr. Bridges slid sideways, crossed a median, struck a truck, and bounced into a ditch along the roadway. He had been in a coma from the time of the accident through the time of the hearing of his workers' compensation claim. A blood analysis test performed by the hospital to which he was taken revealed a blood alcohol content of 0.186 percent. An award of compensation was affirmed by this court.
Although there were similarities in some facts in this case and those in Bridges , the result reached in Bridges does not control the disposition of this appeal. Mr. Bridges was driving a company-owned car at the time of the accident. He was alone in the car. The accident happened at a location that was on a direct route and within about one-half mile of Mr. Bridges' employer's business premises. The evidence was that "[I]t was completely out of character for [Mr. Bridges] to go about personal matters during the work day." 940 S.W.2d at 54. Mr. Bridges employment agreement required him "to drive a make of automobile sold by the employer." Id. The agreement stated, "The automobile is our showroom on wheels and the employee should strive for high visibility of the automobile to help advertise the employer's product." Id. The commission found, in Bridges , that Mr. Bridges' employer's business interests were being served at the time of the accident, consistent with the parties' employment agreement. The facts in this appeal are not consistent with those in Bridges.
The overwhelming weight of the evidence received by the commission requires the conclusion that although the accident in this case occurred in employee's sales territory, it occurred during an alcohol-related social dalliance by employee with Mr. Mims; that at the time of the accident, employee was engaging in pleasure purely his own. There was not sufficient competent evidence in the record to warrant the making of the award. Employer and insurer incurred no liability under The Workers' Compensation Law. See Smith v. District II A and B , 59 S.W.3d 558, 565 (Mo.App. 2001). See also Miller v. Sleight Hellmuth Ink Co. , 436 S.W.2d 625, 628-29 (Mo. 1969). Point IA is granted. As Point IA is dispositive, the remaining claims of error are moot. The award is reversed. The case is remanded to the commission with directions to enter an award of no compensation.
Shrum, J., and Rahmeyer, C.J., concur.