Cox v. Copeland Bros. Const. Co.

• Decision Date: 01 October 1979
• Docket Number: No. KCD,KCD
• Citation: 589 S.W.2d 55
• Court: Missouri Court of Appeals
• Parties: Susan COX et al., Appellants, v. COPELAND BROTHERS CONSTRUCTION COMPANY and Western Casualty & Surety Company, Respondents. 30114.

Page 55

589 S.W.2d 55

Susan COX et al., Appellants, v.COPELAND BROTHERS CONSTRUCTION COMPANY and Western Casualty &SuretyCompany, Respondents.

No. KCD 30114.

Missouri Court of Appeals, Western District.

Oct. 1, 1979.

Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.

Application to Transfer Denied Dec. 6, 1979.

Edward J. Murphy, Butler, for appellants.

Edward W. Mullen, Patrick C. Cena, Deacy & Deacy, Kansas City, for respondents.

Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge and SWOFFORD, C. J.

SWOFFORD, Chief Judge.

On November 13, 1975, Gerald Cox, husband of Susan K. Cox, and father of Susan Evelyn Cox, a minor, was killed in Saline County, Missouri in an automobile collision while en route from his home in Chillicothe to Marshall, Missouri.Appellants filed a claim for his death under the Missouri Workmen's Compensation Act alleging that the accident resulting in Cox's death occurred while he was within the course and scope of his employment as a plumbing foreman for Copeland Brothers Construction Company(Copeland).

After a hearing, death benefits were awarded by the Referee, but upon review by the Industrial Commission that award was reversed and benefits denied.The Circuit Court of Saline County affirmed the Commission's action and from that adverse ruling appellants bring this appeal.

The sole question involved in this appeal is whether or not the deceased was within the course and scope of his employment at the time of the accident.More specifically and narrowly stated, the issue becomes one of whether the decedent's trip from Chillicothe to Marshall, Missouri invoked the "dual purpose doctrine" and thus rendered his death compensable to his dependents under the Act.In other words, was the purpose of his trip partially his own and partially that of his employer, Copeland Brothers Construction Company.The appellants vigorously assert that the denial of death benefits constituted a misinterpretation and misapplication of appropriate Missouri law in failing to apply the "dual purpose doctrine", that this denial was contrary to the overwhelming weight of the evidence, and that there was not sufficient competent evidence to support the denial of compensation.The respondents argue that the Circuit Court properly sustained the findings of the Commission; that those findings were supported by sufficient competent evidence, and that the award properly applied the law in holding that the "dual purpose doctrine" was inapplicable under the evidence.

The general principle is that injuries sustained by an employee while en route from his home to his place of employment are not sustained "within the course and scope" of his employment and are, therefore, not compensable.Certain exceptions to this general rule have been clearly defined by the courts of this state, one of which is the so-called "dual purpose doctrine".This doctrine in Missouri finds its basic support in the case of Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181(Ct. ofApp. N.Y. 1929), in which Cardozo, C. J., held that street risks to which an employee was necessarily exposed while traveling to and from work, unrelated to the service of the employer, did not fall within the ambit of compensable consequences.The court in Marks declared that the determination of whether an injury incurred from such a risk was compensable from the employer hinged upon a simple factual basis, l.c. 183 (2):

"The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own."

The rationale of Marks and the cases which follow it, is that if the exposure to the perils of the highway is related to the employment even though the employment is not the sole cause of such exposure to such risks but is combined with or is a concurrent personal cause, the benefit of compensation is not to be withdrawn.O'Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289, 293 (5)(Mo.1936);Corp v. Joplin Cement Company, 337 S.W.2d 252, 255 (2)(Mo. banc 1960);Downs v. Durbin Corporation, 416 S.W.2d 242, 246 (5)(Mo.App.1967).This principle of workmen's compensation law in Missouri, presently known as the "dual purpose" exception to the "going and coming" or "to and from" rule of exclusion is finely framed in the case of Gingell v. Walters Contracting Corporation, 303 S.W.2d 683, 688, 689 (3)(Mo.App.1957), where this court said, l.c. 688, 689:

"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 afterthought.There is no occasion to weigh the business and personal motive to determine which is Dominant."(Emphasis that of the Gingell court)

This exposition in Gingell of the "dual purpose" exception was declared to be sound, and was followed by the Supreme Court in Corp v. Joplin Cement Company, 337 S.W.2d 252, 255-256 (3)(Mo. banc 1960) as in keeping with the rule that the Workmen's Compensation Act should be liberally construed to effectuate its purpose.Both Gingell and Corp were later followed and reaffirmed by this court in Downs v. Durbin Corporations, 416 S.W.2d 242, 246, 247 (5)(Mo.App.1967)andCowick v. Gibbs Beauty Supplies, 430 S.W.2d 626, 629-630(1, 2)(Mo.App.1968).

Of course, each case involving the question of whether an injury or death of an employee occurs within the course and scope of his employment and is, therefore, compensable, must be determined from the facts and circumstances of that particular case, and this is also true where the resolution of that question involves the "dual purpose doctrine".In the case at bar, such resolution is entirely dependent upon whether or not such doctrine may be properly applied.This Court is, of course, aware of the restrictions ordinarily limiting the scope of appellate review in Workmen's Compensation cases.Such rules are not applicable in this case for the reason that the basic controlling facts are not in dispute and the evidence is not in conflict.

This was recognized by the Industrial Commission.As part of its award, it found, "The facts in this case are largely undisputed and the major dispute is a question of law".Indeed, a meticulous examination of the record reveals a complete absence of any dispute as to any material fact.Where facts are not in dispute the question for determination becomes one of law "irrespective * * * of whether it was of law or of fact as presented to the commission below", Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 915 (11)(1935);Kunce v. Junge Baking Co., 432 S.W.2d 602, 606 (3)(Mo.App.1968);Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (7)(Mo. banc 1960).

Under these circumstances, the finding of the Commission in this case, that the trip from Chillicothe to Marshall during the course of which decedent Cox met with his fatal accident, did not arise out of and in the course of his employment and that the "dual purpose doctrine" was not applicable, is not binding upon a reviewing court.

A summary of the evidence reveals that on November 13, 1975, when Gerald Cox met his death, he was 31 years of age and left as dependents his wife, Susan E. Cox, also 31 years of age, and one daughter, Susan Evelyn Cox, aged 9 years.At the time of his death, he was employed by Copeland Brothers Construction Company as a plumber foreman on a number of low-cost housing projects in various communities in north central Missouri.Frequently, two or more of these projects were in progress in various stages and construction at the same time and Cox was in direct charge as foreman for all plumbing installations.He had from 4 to 6 plumbers working under him and he also did work in the actual construction and installation of plumbing on the various jobs.

The company-employer was owned equally by Jerry Copeland and his brotherGene Copeland, who were also the managing officers.The company maintained an office and warehouse at Chillicothe, Missouri and also a business office in the Kansas City area, and both the Copelands and the Cox family made their homes at Chillicothe, as did many of the company's employees, including the plumbers working under Cox.All of the plumbers, including Cox, worked upon an hourly wage basis for time actually spent on the job sites and the company furnished no transportation or mileage payments to Cox and his men to and from the job sites and their homes.

The evidence established that in addition to the manual plumbing work which Cox performed at the construction sites he was furnished a set of plans and specifications on each job; he initially assisted Jerry Copeland in figuring bids on various jobs either at his or Copeland's home at Chillicothe at night or other times when not working; and on jobs undertaken he would also spend time at his home or Copeland's working on the plans and specification book and mark his set for changes or corrections.Minor changes he would go ahead as foreman and make them, but major changes...