Erickson v. Erickson & Co.
| Decision Date | 27 February 1942 |
| Docket Number | 32945. |
| Citation | 2 N.W.2d 824,212 Minn. 119 |
| Parties | ERICKSON v. ERICKSON & CO. et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Where the employer's work creates the necessity for travel, whether it be for the dual purposes of the employer and the employe or solely for the purpose of the employer such travel and its incidental risks are in the course of the employe's employment, but not otherwise.
2. Where an employe's testimony is positive, but inconsistent and impeached by contradiction, the Industrial Commission is not bound to accept it as true.
Nelson & Cedargren, of Duluth, for relator.
Gillette & Meagher, of Minneapolis, for respondents.
The decision of the Industrial Commission denying the employe compensation found all the facts in his favor except the one whether the accidental injury arose out of and in the course of his employment, and on that issue the finding was against him. Decision of that question depended on whether or not the travel in which he was engaged at the time of injury was for a business purpose of the employer or for a purely personal purpose of the employe.
The employer is an architectural and engineering company with its principal office in Duluth. During the summer of 1939 it had considerable business in Brainerd and vicinity, including the architectural and engineering work in connection with the erection of a new schoolhouse at Pillager. The employe, an architect and engineer, had charge of the work. Because the employer's business required the employe's attention both during and after regular business hours, there were no restrictions on the time or the place of his service. During the summer of 1939, employe and his family lived in a cottage at Lake Hubert about 12 miles northwest of Brainerd.
On the night of July 14, 1939, employe was injured while traveling in his automobile on the so-called Randall road at a point about eight miles south of Pillager as the result of missing a turn and going off the road.
As to the general location of the places involved, Pillager is about 23 miles south and west of Lake Hubert, and Lake Alexander is about 10 miles in the same direction from Pillager. The Randall road between Pillager and Randall runs past Lake Alexander.
The employe first drove from his cottage at Lake Hubert to Pillager and then on the Randall road toward Lake Alexander. It is undisputed that the part of the trip between Lake Hubert and Pillager was for the employer's business purposes. The real dispute is whether the portion of the trip between Pillager and Lake Alexander was for a business purpose of the employer or solely for the employe's personal purpose. The business at Pillager concerned a conference with the officials of the school district about changes in the specifications for a picture screen and classroom desks. Employe also claims that there was some business concerning the pump for the well. In any event, the employer's insurer contends that none of this business occasioned any travel by the employe between Pillager and Lake Alexander, and that the employe engaged in such travel solely for the personal purpose of getting a guest's daughter and taking her to his cottage.
Employe's claimed business purpose for the trip from Pillager to Lake Alexander was an urgent necessity to obtain information from one Peterson, a well driller, who lived on the Randall road beyond the lake, concerning the depth and capacity of the well drilled by him at the school to enable the employe to prepare an addendum to the specifications for either a shallow or deep well pump, depending upon such information and to mail this addendum to the PWA office in Omaha the next day for approval.
Employe's testimony bore out his claims. He testified that the PWA had set September 1, 1939, as a dead line for the completion of the job; that it was decided at a meeting of the school board on July 7 to amend the specifications; that on July 10 he found that the well, which Peterson had drilled, could not be used because of its proximity to a sewer, contrary to state health regulations; that a new well at a different location had to be drilled during the week, which he intended to inspect on the afternoon of the 14th, but failed to do so that advertisement for bids under the changed specifications had to be postponed one week to July 21 pending approval of the PWA office in Omaha; and that it was necessary to have the changes in the mail on the 15th in order to get them to PWA for approval and returned prior to the date set for publication.
There was, however, another side to the picture. Although employe claimed that the pump matter was urgent and had to be attended to that night, he testified that at the school board meeting a week before, on July 7, the matter of the pump was postponed because it was to be handled through different channels, and it was decided to advertise separately for bids for the pump. That is exactly what was done. The changes in the specifications covering the picture screen and the desks evidently were sent to the PWA office for approval prior to the 14th, because approval was given on the 15th. Likewise, the specifications, which were in employe's car, covered the screen curtain and the desks, but contained no reference whatever to the well or pump, The advertisement for bids, which supposedly covered the pump also and was held up pending PWA approval of the change in the pump specifications, covered only the picture screen and desks without any reference to the pump, and was published beginning the week of the 21st following the PWA approval of the 15th. The pump matter apparently had no connection with the picture screen and desks.
Peterson had nothing to do with the type of pump to be installed. That matter was for the employe's exclusive determination. In order to determine the type of pump, it was necessary to test the well to ascertain its depth and volume of water production. This could be done only in the daytime at the well with Peterson's aid. A conference at night with Peterson at his home was utterly useless for the purposes for which the employe claimed he intended to have it.
The purely personal purpose of employe is claimed to be that he went to get one Janet Nice, the daughter of one of his guests, at the cabin of one Moats at Lake Alexander and take her to his cottage at Lake Hubert. Janet's father, a witness for employe, accompanied him on the trip. He testified that before leaving the cottage at Lake Hubert employe stated that he had some business in Pillager (presumably at the school) and that he might as well 'kill two birds with one stone and pick up' Janet on the same trip. The witness was not informed that the employe had any business concerning the pump, the specifications, or with Peterson.
About a month after the accident the employe, while still confined in the hospital, gave the adjuster of the employer's insurer a detailed statement purporting to be his version of what he did and the reasons for his actions on the night of the accident. The adjuster wrote the statement in longhand and asked the employe to sign it. This he refused to do....
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