Evans v. Consumer Programs, Inc.

• Decision Date: 10 February 1993
• Docket Number: No. 18369,18369
• Court: Missouri Court of Appeals
• Parties: Lari Ann EVANS, Appellant, v. CONSUMER PROGRAMS, INC., and American Motorist Insurance Company, Respondents.

Page 183

849 S.W.2d 183

Lari Ann EVANS, Appellant, v. CONSUMER PROGRAMS, INC., and American Motorist Insurance Company, Respondents.

No. 18369.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 10, 1993.

Motion for Rehearing and Transfer to

Supreme Court Denied March 4, 1993.

Application to Transfer Denied April 20, 1993.

Robert W. Hill, Springfield, for appellant.

Raymond E. Whiteaker, Janis L. Prewitt, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for respondents.

CROW, Presiding Judge.

On May 7, 1990, two employees of Consumer Programs, Inc. ("CPI"), Lari Ann Evans ("Claimant") and her husband, Timothy A.W. Evans, were traveling in an automobile. An accident occurred. Mr. Evans was killed. Claimant was injured.

Claimant filed two claims against CPI under The Workers' Compensation Law, chapter 287, RSMo 1986, as amended. In one (number 90-161447), Claimant sought benefits for her injuries. In the other (number 90-161440), Claimant sought benefits for her husband's death. § 287.240, RSMo Cum.Supp.1990.

An administrative law judge ("ALJ") of the Division of Workers' Compensation entered an award denying each claim. On application by Claimant for review, the Labor and Industrial Relations Commission ("Commission") entered an award affirming the ALJ's denial.

Claimant appeals. The sole issue is whether the Commission erred in holding the tragic occurrence was not an "accident arising out of and in the course of" the Evanses' employment.

Appellate review of a final decision by the Commission in a workers' compensation case is governed by Mo. Const. art. V, § 18 (1945, amended 1976), and § 287.495, RSMo 1986. ¹ From those sources, additional principles have evolved. Rector v. City of Springfield, 820 S.W.2d 639, 640 (Mo.App.1991); Causey v. McCord, 774 S.W.2d 898, 899 (Mo.App.1989). In reviewing questions of fact, an appellate court's inquiry is limited to whether, upon the whole record and considering the evidence in the light most favorable to the Commission's findings, the Commission could have reasonably made such findings and reached the result it did. Lawson v. Emerson Electric Co., 833 S.W.2d 467, 471 (Mo.App.1992); Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921, 925 (Mo.App.1985). The appellate court disregards evidence which might support a finding different from that of the Commission, even though a contrary finding would be supported by the evidence. Rector, 820 S.W.2d at 640; Phillips v. Ozark Bank, 803 S.W.2d 662, 663 (Mo.App.1991).

So viewed, the evidence demonstrates Claimant and her husband ("Tim") ² were employed by CPI as photographers. Their "permanent home" was in the "Springfield, Missouri area," but their job assignments took them into several states. Claimant and Tim would each be assigned a store at which each would take photographs. Describing their duties, Claimant testified:

Setting up equipment, keeping the equipment in working order, supplies, taking pictures of our customers, good customer rapport, giving them an appointment when to come back, presell to them, tell them they're going to have a lot of extra nice pictures that they can purchase at an additional cost.

Claimant's testimony was unclear as to how long she or Tim would remain at a job site; however, we infer neither was ever at one site more than six days. Evidently, their practice was to disassemble the equipment at each site on Sunday night in preparation for travel. Claimant's testimony:

Q How were your job assignments given to you ... by CPI?

A Over the telephone on a weekly basis on Sunday night when I would call into my district manager, how many customers I did, subjects, how much money I collected.

Because they worked at different sites, Claimant and Tim traveled separately. However, they frequently had assignments in the same area. Claimant explained:

Our district managers were real helpful in keeping ... our towns close enough together that we could drive and spend the night together.

Q Is this something that was an accommodation before your work trip began?

A Yes. We would talk about ... our schedules ... in advance so I'd know ... where I was going, how much money I should take with me, where ... we would expect to stay. ... for instance, when I ... shot La Junta, Colorado, Tim was in Pueblo, we stayed in the middle, in a town in between, because the distance was 20 miles apiece and it was worth it for us to be able to stay together; or when we worked in the Denver area and Tim might be doing Thorton (sic) and I might be doing something south, we would stay in town, right there.

CPI paid Claimant and Tim mileage from their home to the job sites and back. When Claimant or Tim went from one job site to another before returning home, CPI paid them mileage from site to site. CPI also paid them an hourly rate for driving time, calculated at 55 miles per hour. Mileage driven by Claimant and Tim to an intermediate location between their respective job sites to be together overnight was uncompensated by CPI.

For each day away from home, CPI paid Claimant and Tim "per diem" of $35 each. Per diem stopped the day they arrived home. When the time interval between jobs was short and one job site was near the next, but far from their home, it was less expensive for CPI to pay Claimant and Tim per diem to stay in the job area than to pay them to drive home from the first site and back to the next. Claimant testified that in such circumstances CPI encouraged her and Tim not to go home between jobs. According to Claimant, this was a "custom." She added that on such occasions their managers suggested she and Tim use the spare time for sight-seeing and recreation. Claimant's testimony:

.... when we did our Sunday call-ins is when we would get the suggestions of things to do, things to see and places to go. Sunday nights we did our call-ins and that's when they'd make little suggestions, because we would have Monday and Tuesday off except we'd be at our next promotion Tuesday evenings setting up.

....

Q ... what benefit was derived by your employer, CPI, when Tim and yourself would stay out on these work trips as opposed to driving home to Springfield, Missouri?

....

A ... The benefit to CPI is that I, as an employee, am much happier because I didn't spend my day off rushing through a state to get home. I spent ... this lack time sightseeing, seeing something that the country had to offer. I was rested and in a better frame of mind, and the company didn't have to pay my mileage to go home or my hours to go home. I felt like it was beneficial to everyone.

On Sunday night, May 6, 1990, Claimant finished a job at Scottsbluff, Nebraska; Tim finished one in Denver, Colorado. He drove to Scottsbluff that night, joining Claimant around 10:30.

Claimant's next assignment was La Junta, Colorado; Tim's was Pueblo, Colorado. They were to be at those respective sites before 8:00 p.m., Tuesday, May 8. Therefore, explained Claimant, they had all day Monday and a few hours Tuesday to themselves. They decided to go to Mt. Rushmore, South Dakota, some 200 miles north of Scottsbluff.

Claimant and Tim departed Scottsbluff by automobile Monday morning, May 7, 1990, around 8:30 or 9:00, northbound toward Rapid City, South Dakota. The accident described at the outset of this opinion occurred before they reached their destination. Although the accident location is unrevealed by the record, we infer it was somewhere in South Dakota. Claimant testified she was taken from the accident scene to a hospital in Hot Springs, South Dakota, then transferred to a hospital in Rapid City, South Dakota.

The ALJ found that because the next job assignments of Claimant and Tim were in southern Colorado, their journey north to Mt. Rushmore was not "work-related." Instead, it was "a deviation for personal benefit" from their job travel. The ALJ continued:

One exception to the deviation rule is the mutual benefit rule. The mutual benefit rule generally involves a single act performed for the benefit of both the employee and the employer. [Claimant] testified that the reason for their visit to Mt. Rushmore was to take pictures and to enjoy the scenery. This is a personal benefit. [Claimant] also testified that their employer encouraged them to see the tourist attractions when they were on the road. It was indicated that because of the employer's insistence that they see the tourist attractions that the personal travel becomes a benefit to the employer. The only argument that could be made in this regard is that the employee becomes a happy employee because he has experienced an enjoyable situation, to-wit: viewing of the scenery and visiting Mt. Rushmore, and because the employee is a happy employee, the employer benefits because a happy employee is a good employee. Workers' compensation does not provide benefits to employees for 24 hours a day, seven days a week and 52 weeks a year. The argument fails.

In its award, the Commission incorporated the ALJ's findings and, as reported earlier, denied benefits.

The first of Claimant's two points relied on avers the Commission erred in that the evidence "established that the accident did arise out of and in the course of employment as the employees were engaged in an act for the mutual benefit of the employer and the employees." Claimant cites three cases in support of this contention.

The first is Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915 (banc 1945). There, an employer allowed its employees to keep busy on personal work when not performing company work. An employee, while "plating" a company product in a chemical tank, placed a personal article in the tank to "[use] up the amperage," a common practice. The employee removed both articles from the tank, polished the company product, then began polishing his personal article. While doing so, one of his hands was caught in the machine and injured. The Commission awarded workers' compensation...