Kiley v. Sward-Kemp Drug Co. , 214 Minn. 548 ( 1943 )

The conclusion reached by the majority appears to me to be opposed to the underlying purpose of the workmen's compensation act as it relates to injuries arising out of one's employment as construed by this court in previous cases. The act was devised to provide protection to workmen in the form of compensation for injuries arising from hazards having a reasonable relation to the employment and which followed as a natural incident of the work. It was designed to compensate employes for industrial accidents and not for accidents due to causes not connected with the employment. The philosophy of the statutory limitation to cases arising out of the employment was clearly expressed in State ex rel. Miller v. District Court,138 Minn. 326, 164 N.W. 1012, L.R.A. 1918F, 881, decided in 1917, one of the earliest cases to arise under the act. The purpose of the act was to shift the burden of providing compensation for accidental injuries sustained during employment from the individual workman to the industry itself, without requiring the employe to prove fault or negligence on the part of the employer. State ex rel. Duluth B. M. Co. v. District Court, 129 Minn. 176, 151 N.W. 912. It thereby abolished the common-law system of damages, which involved considerable delay, economic waste, and inadequate relief, whether viewed from the standpoint of employer or employe. In short, it was a salutary social development designed to force industry to bear industry's burden and to consider that burden as a proportionate part of the expense of production. On the one hand, the employe had a right of recovery without proof of negligence and without being subjected to the defenses of contributory negligence and assumption of risk. On the other hand, compensation was restricted exclusively to those injuries arising out of and in the course of the employment; or, in other words, to those which had their origin in a risk reasonably connected with the employment. State ex rel. Miller v. District Court, 138 Minn. 326,164 N.W. 1012, L.R.A. 1918F, 881, supra. That the act was designed to provide compensation only for those injuries sustained as a direct result of employment is manifest by the language of the act itself as first passed in 1913, where compensation was limited to cases (§ 1) where "personal injury or death is caused to an employe by accident arising out of and in the course of his employment." By L. 1913, c. 467, § 34 (i), it was provided:

"Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of employment,' it is hereby declared:

"Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service * * * as such workmen."

This section was amended by L. 1923, c. 300, § 14(j), which added the following:

"provided that where the employer regularly furnishes transportation to his employes to or from the place of employment, such employes shall be held to be subject to this act while being so transported."

This amendment was precipitated by the case of Nesbitt v. Twin City F. F. Co. 145 Minn. 286, 291, 177 N.W. 131,10 A.L.R. 165, decided in 1920. See Radermacher v. St. Paul City Ry. Co.214 Minn. 427, 8 N.W.2d 466. In the Nesbitt case the claimant was injured while riding to work in a conveyance furnished by the employer for that purpose. This court held that the express terms of the act as they existed at that time excluded claimant from the operation of the compensation law. Although the court indicated that, while hardship might result in certain cases, any extension of the act so as to apply to cases of that character was a matter for the legislature to consider. The effect of the proviso in L. 1923, c. 300, § 14(j), was not to change the meaning of the words "arising out of and in the course of employment" as restricted, but to provide coverage where the employer regularly furnishes transportation to his employes to and from work. Since 1923 the legislature has frequently amended the act, but no amendment has been passed affecting the phrase "arising out of and in the course of employment," and the statute has remained the same from 1923 to the present time in that respect. The only extension of the act with reference to injuries arising out of the employment has been by judicial interpretation as the court has applied the phrase "arising out of and in the course of employment" to the varying factual situations which have come before it.

In the Miller case, 138 Minn. 326, 328, 164 N.W. 1012, 1013, L.R.A. 1918F, 881, supra, this court quoted with approbation a definition of the phrase "arising out of the employment" as laid down in McNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, as follows:

"It (the injury) ``arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. * * * It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

The foregoing language has been approved in a long line of decisions and in such recent cases as Kaselnak v. Fruit Dispatch, 205 Minn. 198, 285 N.W. 482; McKenzie v. Railway Express Agency, Inc. 205 Minn. 231, 285 N.W. 529; Corcoran v. Teamsters Chauffeurs Joint Council, 209 Minn. 289, 297 N.W. 4; Hanson v. Robitshek-Schneider Co. 209 Minn. 596, 297 N.W. 19; Cavilla v. Northern States Power Co. 213 Minn. 331, 336, 6 N.W.2d 812,815, decided December 4, 1942. In the Cavilla case, the most recent expression of this court on the subject, it was stated:

"* * * ``it [the injury] "arises out of" the employment when it reasonably appears from all the facts and circumstances, that there is a causal connection between the conditions which the employer puts about the employe and the resulting injury.' Excluded are injuries which do not occur while the employe is engaged as workman in the employer's service or which are notcaused by or spring from hazards incident to the employment." (Italics supplied.)

Thus, our duty is to apply to the particular facts and circumstances in each case the rule above stated, viz.: Did the injury spring from or was it caused by a hazard incident to the employment?

Relator in the instant case was not a traveling salesman with a roving commission and no fixed termini. She does not come within the rule, therefore, of the so-called "salesman" cases. Wold v. Chevrolet Motor Co. 147 Minn. 17, 179 N.W. 219; Howlett v. Midwest Distributors, Inc. 202 Minn. 247,277 N.W. 913, and cases there cited. She was regularly employed with a fixed place of employment and definite hours, but was sent on a special mission to Minneapolis to perform the single task of attending the cosmetic show. She attempts to invoke the rule that a traveling employe is covered by the act while on a homeward trip.

"The same rules are applicable to traveling as to other employes, but with different result, compelled by the fact that in such cases the travel is in performance of the employe's duty. Where an injury occurs to a traveling employe while engaged in travel for the prosecution of the employer's business, it arises out of and in the course of the employment." Cavilla v. Northern States Power Co. 213 Minn. 331,337, 6 N.W.2d 812, 815, supra; Austin v. Leonard, Crossett Riley, Inc. 177 Minn. 503,225 N.W. 428.

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:

"For relator, it is insisted, with misplaced confidence, that as matter of law compensation should be granted under the rule of the ``traveling men's cases,' * * *. Precisely, the argument is that ``so long as Lunde did the natural and customary thing which any salesman would do who had a roving commission such as his, and had four hours' time to kill waiting for a train, he was covered by the [compensation] Act.'

"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. Obviously he may do so."

The cases involving the rule "arising out of employment" as related to a traveling employe were recently and exhaustively discussed in the Cavilla case, supra, and further consideration is unnecessary here.

The majority opinion places considerable faith upon the proposition that here the employe was afforded the privilege of selecting her route and mode of travel. It is true, in the absence of specific instructions the choice of routes is open to the employe, and his failure to take the shortest route is not a departure from his employment if he uses an ordinary, customary, and usual route. Thomas v. Lockwood Oil Co. 174 Wis. 486, 182 N.W. 841. In the instant case, however, the employer specifically testified that it did not know relator's plans with regard to her proposed trip to St. Cloud, Glenwood, and Marshall, and we do not quite understand how the employer could give its authority for that of which it knew nothing. Implicit in the findings of the commission is the fact that the employer did not consent to the trip. It is not difficult to speculate as to what ludicrous results might arise if, as contended by the majority opinion, an employer could by acquiescence or consent extend the obvious scope and purpose of the compensation act to include injuries which do not have their origin in hazards reasonably connected with the employment.

In Kayser v. Carson Pirie Scott Co. 203 Minn. 578,282 N.W. 801, supra, one of the most recent cases on the subject, this court established a precedent which is not followed by the majority opinion in the instant case and yet is not expressly overruled. If we no longer believe this to be sound doctrine, I feel that in fairness to the members of the bar and litigants we should frankly and expressly overrule it and not permit its overthrow by implication to remain in the field of conjecture. In the Kayser case a traveling salesman, accompanied by his daughter, drove his automobile through New Ulm, to which he later intended to return to call on a customer. He proceeded to Pipestone for the purpose of enabling his daughter to keep an appointment there, after which he turned back toward New Ulm. Before reaching his destination his automobile was struck by a train, and he sustained fatal injuries. The court held that the injuries did not arise out of and in the course of his employment. In that case, the salesman had no regular route with fixed termini from which to start and return and was employed in a territory where both New Ulm and Pipestone are located. There the only issue to be decided was whether the salesman, after completing his personal errand at Pipestone and turning back to New Ulm, reëntered the scope of his employment so as to again come within the protective provisions of the compensation act. In affirming the decision of the industrial trial commission denying compensation, this court said (203 Minn. 582, 282 N.W. 803):

"That call [to New Ulm] had nothing to do with the trip to Pipestone, and he did not enter the course of his employmentmerely upon the fulfillment of his personal errand in Pipestoneand the start of the return trip." (Italics supplied.)

In the instant case, relator was sent on a special mission. She was not a salesman with a roving commission and without fixed termini, and the factual picture here presents a much stronger case for the denial of compensation than the Kayser case. The holding of the majority opinion herein is irreconcilable with the conclusion reached in that case.

Relator does not seriously contend in this case that the trip to St. Cloud and Glenwood was in the course of her employment. Her position is stated thus in her brief:

"If we assume that the employe departed from the scope of her employment in making the trip from Minneapolis to St. Cloud and thence to Glenwood, it follows that when she left Glenwood for the sole purpose of returning to Marshall she again entered the orbit of her employment."

The dissenting member of the industrial commission in his memorandum concedes that the trip to St. Cloud and Glenwood did not arise out of and in the course of the employment, and the effect of the majority opinion herein is that, as a matter of law, when relator left Glenwood for Marshall she reëtered her employment because she was homeward bound. This is not only directly contrary to the holding in the Kayser case but also against the decided weight of authority in other jurisdictions. Red Arrow Bonded Messenger Corp. v. Industrial Ace. Comm.39 Cal. App. 2d 559, 103 P.2d 1004; McNaught v. Standard Oil Co. 128 Neb. 517, 259 N.W. 517; Oram v. Moon Co. 285 N.Y. 42,32 N.E.2d 785; Duggan v. Toombsray S. D. Co.228 Mo. App. 61, 66 S.W.2d 973; Mountain v. Industrial Acc. Comm.92 Cal. App. 176, 267 P. 913; Freeman v. Salem Reformed Church,125 Pa. Super. 367, 190 A. 159; Luke v. St. Paul Mercury Ind. Co.140 Neb. 557, 300 N.W. 577; Kinkead v. Management Eng. Corp. (Mo.App.) 103 S.W.2d 545. The general rule as laid down in Restatement, Agency, p. 531, § 237, provides:

"A servant who has temporarily departed from the scope of employment does not re-enter it until he is againreasonably near the authorized space and time limits and is acting with the intention of serving his master's business." (Italics supplied.)

Reëntry is not affected merely by turning the course backin the general direction of the place of employment. Where aservant deviates from the scope of his employment for his ownpurposes he is still upon his own trip, even though engaged inreturning to his employment, until he has returned either tothe point of departure from the path of duty or to a pointwhere in the performance of duty he is required to be. 42 C. J. pp. 1112-1113; and Kinkead v. Management Eng. Corp. (Mo.App.) 103 S.W.2d 545; Kayser v. Carson Pirie Scott Co.203 Minn. 578, 282 N.W. 801; and Luke v. St. Paul Mercury Ind. Co.140 Neb. 557, 300 N.W. 577, supra.

In the present case, relator took a detour which necessitated traveling 100 miles farther than the direct route back to Marshall from Minneapolis. The distance from Minneapolis to Marshall is 153 miles; from Glenwood to Marshall, 109 miles; and from Minneapolis to Glenwood, 144 miles, or a total of 253 miles. In traveling to St. Cloud and Glenwood, she went in a northwesterly direction, whereas Marshall is in the southwestern part of the state. At the time of the accident she was six miles north of Montevideo and a considerable distance north of any reasonable or direct route from Minneapolis to Marshall. To permit an employe to fix his own limitations far beyond the sphere of the specific mission on which he is sent would be to avoid the very language of the compensation act. It also conflicts with the rule we have emphasized and consistently followed, that the injury must have a reasonable relation to the hazards of the employment. As I view the facts, there is reasonable support for the commission's finding that the deviation from relator's employment was so substantial as to amount to an entire departure therefrom, and that employment was not resumed because she had not reached a point in reasonable proximity to the sphere of her duties. At what point, homeward bound from Glenwood to Marshall, relator would, as a matter of law, have made a reëntry is not for us to determine. Our responsibility is limited to determination of the question of whether the evidence reasonably supports the finding that reëntry had not been made.

It seems to me that in arriving at the conclusion reached by the majority, the rule as set forth in Reinhard v. Universal Film Exch. Inc. supra, which we have consistently followed, is now completely disregarded. Quoting from Maher v. Duluth Yellow Cab Co. 172 Minn. 439, 442, 215 N.W. 678, 679, the court said in the Reinhard case, 197 Minn. 375, 267 N.W. 225:

"It is for the triers of fact to choose not only between conflicting evidence but also between opposed inferences. * * * It is only where the inference upon which the challenged finding rests is not in itself reasonably supported or where it is clear that the whole evidence is in manifest and undeniable preponderance against it (even though there is some support for it in the evidence) that there should be a reversal."

It is my opinion, moreover, that when we hold as a matter of law that relator had reëntered her employment when leaving Glenwood we are usurping the function of the trier of fact and getting far afield from our duties as a court of review.

I do not overlook the holding in Moore v. J. A. McNulty Co.171 Minn. 75, 213 N.W. 546, that the workmen's compensation act is highly remedial and should not be construed so as to exclude an employe from the benefits thereof unless it clearly appears that he does not come within the protection of the act. This is as it should be. On the other hand, we should not, by judicial legislation, write into the act a provision which virtually provides insurance against all hazards though unrelated to and unconnected with the employment.

I am of the opinion, therefore, that the writ should be discharged and the order affirmed.