Corp v. Joplin Cement Co.

• Decision Date: 11 July 1960
• Docket Number: No. 47588,47588
• Citation: 337 S.W.2d 252
• Parties: Pauline Grace CORP, Carl Eugene Corp, Paula Marie Corp and Sue Beth Corp, Appellants, v. JOPLIN CEMENT COMPANY and Phoenix Assurance Company of New York, Respondents.
• Court: Missouri Supreme Court

Page 252

337 S.W.2d 252

Pauline Grace CORP, Carl Eugene Corp, Paula Marie Corp and Sue Beth Corp, Appellants, v. JOPLIN CEMENT COMPANY and Phoenix Assurance Company of New York, Respondents.

No. 47588.

Supreme Court of Missouri, En Banc.

July 11, 1960.

William C. Myers, Jr., Robert P. Warden, Webb City, for appellants.

Rex Titus, Joplin (Richart & Titus, Joplin, of counsel), for respondents.

STORCKMAN, Judge.

This is a proceeding for the recovery of the maximum death benefit under the Workmen's Compensation Law. The claimants are the widow and three dependent minor children of the deceased employee. The award of the Industrial Commission denied compensation and the claimants appealed to the circuit court where the award was affirmed. The claimants' appeal from the judgment of the circuit court is before us on transfer from the Springfield Court of Appeals. Corp v. Joplin Cement Co., Mo.App., 323 S.W.2d 385.

At the time the employee was killed, the maximum death benefits were $12,400. Section 287.240 RSMo 1949, V.A.M.S. The notice of appeal was filed in the trial court prior to January 1, 1960. Section 477.040, as amended Laws 1959, S.B. No. 7, Sec. 2. Since dependent children, in addition to the widow, are claimants and the amount in dispute, exclusive of costs, exceeds $7,500, the supreme court has jurisdiction of the appeal. Gennari v. Norwood Hills Corporation, Mo., 322 S.W.2d 718.

The employee Carl Corp was regularly employed by the Joplin Cement Company as an 'improver's helper' or 'insulator's helper'. For three weeks before his death he had been working on a job in Winfield, Kansas, about 175 miles west of Joplin. His normal work week was five days, Monday through Friday. Although he was paid travel time and expenses for only one-round trip to and from the job in Winfield, he usually came home each week end at his own expense, either driving his own automobile or riding with his foreman, Clyde Hymer, Jr.

On Friday night, June 15, 1956, Corp returned to his home in Purcell, Missouri, which is located a few miles north of Joplin. On Saturday morning, a little after 9 a. m., he left home in his automobile to go to the Company plant in Joplin. The purpose of the trip was to his pay check and also to procure some building materials to take back to the job in Winfield on the following Monday. It was not necessary for him to go to the plant to get his pay check. His employer would have mailed it to his home or he could have received it on the job if he had so elected. He also went to the home of his foreman who had not been on the Winfield job the week before, during which time William Sill had acted as foreman.

At the employer's office Corp got his pay check, and building materials, consisting of a substantial quantity of canvas and a roll of sheeting, were loaded into his automobile. On his way home, he west through Webb City where he stopped at the Glass Bar and cashed his pay check. He drank three or four 12-ounce servings of beer, talked to the owner and another patron, played the juke box and left after about 45 minutes. A short time later, while traveling alone on a direct route from Webb City to Purcell, Mr. Corp was killed in a one-car accident. The building materrials belonging to his employer were found in and about his wrecked automobile. Other evidence and further details will be developed in the course of the opinion.

The final award of the Commission, with one of the three members dissenting, is as follows:

'We find from all the evidence that Carl D. Corp was a regular employee of Joplin Cement Company on and before June 16, 1956. We find from all the evidence that he sustained an accident on June 16th, 1956, while driving his own automobile, which contained building materials (canvas and red sheathing) belonging to his employer, on a personal mission, that is, to go to his home in Purcell, Missouri, and pick up his wife.

'We further find from all the evidence that at the time of the accident he was not on a mission for his employer, nor on a 'dual purpose' trip.

'We, therefore, find and conclude from all the evidence that the accident sustained by Carl D. Corp on June 16th, 1956, which caused his death that day, did not arise out of and in the course of his employment. (DaMore vs. Encyclopedia Americana [Mo.], 290 S.W.2d 105; Garbo vs. [P. M.] Bruner Granitoid Co. [Mo.App.], 249 S.W.2d 477, and Koder vs. Tough [Mo.App.], 247 S.W.2d 876).

'Therefore, compensation must be and same is hereby denied.'

The Commission's findings of fact are meager and do not clearly show the theory upon which the Commission reached its decision, but in view of the nature of the issues and the state of the evidence in this case their sufficiency need not be determined. See Section 287.460; Scott v. Wheelock Bros., Inc., 357 Mo. 480, 209 S.W.2d 149, 152; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165, 169; Groce v. Pyle, Mo.App., 315 S.W.2d 482, 491[9, 10].

Whether the death of the employee was one arising out of and in the course of his employment is the question to be determined. This in turn depends upon whether the automobile trip in which Corp was engaged was undertaken for a strictly personal reason or was combined with a necessary business purpose of the employer.

The Commission in its award recognized the doctrine of 'dual purpose' travel as have the courts of Missouri. A much cited case expounding this doctrine is Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183, an opinion by Judge Cardozo. Briefly stated, the doctrine is that if the work of the employee creates the necessity for the travel, he is in the course of his employment, even though he at the same time is serving some purpose of his own. This general statement based on the Marks' case has been approved by this court in O'Dell v. Lost Trail Inc., 339 Mo. 1108, 100 S.W.2d 289, 293, and McMain v. J. J. Connor & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43, 44. See also Brown v. Weber Implement & Auto Co., 357 No. 1, 206 S.W.2d 350, 354.

In the recent case of Gingell v. Walters Contracting Corporation, Mo.App., 303 S.W.2d 683, 688-689, Judge Cave, in further explaining the doctrine and applying it to permit a recovery in a similar case, stated: 'Some of the decisions have construed this doctrine to be applicable only when the primary purpose of the trip is on the employer's business, or sometimes referred to as the 'dominant purpose' test. Judge Cardozo used no such language. He said it was sufficient if the business motive was a concurrent cause of the trip. He then defined 'concurrent cause' by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been cancelled. As we understand this formula, it is not necessary that, on failure of the personal motive, the business trip would have been taken anyway by this particular employee at this particular time. It is enough that some one would have had to make the trip to carry out the business mission. If the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with the employee's personal trip, it would be a concurrent cause of the trip, rather than an incidental appendage or afterthough. There is no occasion to weigh the business and personal motive to determine which is dominant.'

This is a sound exposition of the doctrine and is in keeping with the rule that the Workmen's Compensation Act should be liberally construed to effectuate its purposes. Blew v. Conner, Mo., 328 S.W.2d 626; Marie v. Standard Steel Works, Mo., 319 S.W.2d 871; Sec. 287.800.

The Commission found that Corp was a regular employee of the Cement Company at the time of the accident and that he was carrying in his automobile building materials belonging to his employer. These findings are consistent with a mission for his employer, at least with dual purpose travel. However, the Commission further found that Corp was driving his automobile 'on a personal mission, that is, to go to his home in Purcell, Missouri, and pick up his wife.' Mrs. Corp testified that, although nothing definite was said on the day in question, she, her husband, and the children, usually went to Joplin on Saturday afternoon, had lunch, and did their shopping. The operator of the Glass Bar testified that Corp told him that he was going home and pick up his wife and come back to Webb City and do some shopping. While the finding that Corp intended to pick up his wife and go shopping after he got home is supported by the evidence, it is not controlling or persuasive of the purpose of the trip in question; that is, the trip from his home to the company plant and the return.

The pertinent inquiry is whether employee Corp was directed by his employer to pick up the building materials and transport them to the job site in Winfield and if the carriage of the material from the company plant to his home was an integral and reasonably expected part of that transportation.

Mr. Corp, his foreman Clyde Hymer, Jr., and William Sill, were the only employees on the Winfield job who lived in the Joplin area where the company plant was located. Mr. Sill had a room in Winfield and did not usually come home on week ends. Mrs. Corp testified her husband usually came home on week ends to get supplies and to visit his family. Both Corp's wife and his foreman testified that Corp had previously carried supplies to the Winfield job in his automobile. His wife had been with him on the previous week end when he picked up building materials at his employer's plant. Before Corp left home this Saturday morning, he told his wife he was going to the company plant to get materials to take back to Winfield and to pick up his pay check.

The employer's own evidence and the testimony of its officers tend to prove Corp's authority to pick up the supplies and carry them back to Winfield in his automobile. Admissions of ...