Gordon v. Puritan Chemical Co.

• Decision Date: 02 September 1966
• Docket Number: No. 8456,8456
• Citation: 406 S.W.2d 822
• Parties: James B. GORDON, v. PURITAN CHEMICAL COMPANY and Employers Mutual Liability Insurance Company.
• Court: Missouri Court of Appeals

Page 822

406 S.W.2d 822

James B. GORDON, v. PURITAN CHEMICAL COMPANY and Employers Mutual Liability Insurance Company.

No. 8456.

Springfield Court of Appeals, Missouri.

Sept. 2, 1966.

Rehearing Denied Sept. 26, 1966.

Edward C. Friedewald, Robert R. Schwarz, Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for appellants.

Benjamin B. Tepper, Clayton, for respondent.

HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of Dunklin County affirming an award of compensation made to the respondent, James B. Gordon, under the provisions of the Workmen's Compensation Law, Chapter 287, RSMo (1959), V.A.M.S. The Division of Workmen's Compensation denied the respondent's claim in the first instance, but on review the Industrial Commission reversed the Division's finding and entered an award in favor of the claimant. The circuit court affirmed the award and this appeal followed. The broad question before us is whether the accident in which the respondent was injured '(arose) out of and in the course of his employment,' within the meaning of Section 287.120, par. 1, RSMo the claimant had his company's permission

The claimant is a traveling salesman. At the time in question, he was employed in the St. Louis office of the Puritan Chemical Company. Mr. Gordon's assigned territory included St. Louis and parts of Missouri, Illinois and Kentucky. No part of Arkansas was in his territory, but because Mr. Gordon's wife had relatives in Hot Springs, Arkansas, and he occasionally went there, the claimant had his company's pemission to solicit orders in Hot Springs. As the sales manager put it, 'we thought he could sell a few people while he was there.'

In December 1962, while on vacation in Hot Springs, Mr. Gordon obtained an order from a Mr. Louis Cohen. Mr. Cohen purchased twelve gallons of cleaning materials, for which he was charged $45.10, plus an additional $6.01 for use tax and shipping charges. The claimant's commission was $10.80. This was the only sale Mr. Gordon made in Arkansas. The claimant testified that if he had been called upon to 'make the account good,' without returning any merchandise, it would have cost him about $27.00.

Mr. Cohen did not pay for the cleaning materials. Mr. Gordon's attention was called to Mr. Cohen's delinquency on several occasions, and on June 8, 1963, at a sales meeting in St. Louis, claimant was instructed to call Mr. Cohen to see if the account could be collected. As Mr. Gordon's sales manager put it, claimant was told 'to see what he could do to get this thing taken care of.'

On Wednesday, June 12, Mr. Gordon left St. Louis to work in his territory in southeast Missouri. He left St. Louis early in the morning, arrived in Kennett, Missouri, about 11:00 A.M., and made two calls in Kennett. 'Somewhere around 12:30, 1:00 o'clock,' Mr. Gordon decided to go to Hot Springs. Kennett is 198 miles from St. Louis; Hot Springs is 248 miles from Kennett. Arriving in Hot Springs about 4:30 P.M., the respondent contacted Mr. Cohen. Mr. Cohen advised the claimant that 'he didn't want the merchandise, and * * * felt eventually (claimant) would get back and pick it up.' Mr. Gordon put the two cartons of cleaning materials in his car, and went to his mother-in-law's store nearby. He assisted his mother-in-law in closing her store, picked up his brother-in-law and sister-in-law, and they all had dinner at a local restaurant. Claimant visited with his wife's relatives until about 8:30 P.M., then left Hot Springs to return to Kennett. On the return trip, he was injured in an automobile accident. Other facts and details will be noticed in the course of the opinion.

The Referee's finding, so far as it is material, was that:

'I find from the evidence that employee's accident of June 12, 1963, did not arise out of or in the course of his employment with Puritan Chemical Company.'

The Industrial Commission's finding, again so far as it is material, was:

'We find from all of the evidence that the employee, James B. Gordon, sustained an accident on June 12, 1963, arising out of and in the course of his employment with the Puritan Chemical Company. Corp v. Joplin Cement Co., (Mo.,) 337 S.W.2d 252.'

Needless to say, both these findings might well have been amplified, at least sufficiently to show how the controlling issues were decided, Michler v. Krey Packing Co., 363 Mo. 707, 718--719, 253 S.W.2d 136, 142--143(8); Dixon v. Art Bunker Motors, Inc., Mo.App., 387 S.W.2d 199, 204--205(4); Anno., 146 A.L.R. 123, 165--170, Sec. VI c (2) (1943), but perhaps they are sufficient to constitute an implied finding of the necessary ultimate facts, State ex rel. Probst v. Haid, 333 Mo. 390, 398, 62 S.W.2d 869, 872--873(3, 4), and in any event the essential and determinative issue is whether the claimant's work created the necessity for his trip from Kennett to Hot Springs, even though he was serving some purpose of his own at the same time. If so, he was within the doctrine of dual purpose travel, his accident arose out of and in the course of his employment, and his injury was compensable. Corp v. Joplin Cement Co., supra, 337 S.W.2d 252, 255(2); Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 347--348(2); Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183(2).

In support of their respective positions, the parties have briefed and argued several points dealing with appellate review in Workmen's Compensation cases. The claimant insists that the Commission's award involves the resolution of a question of fact, and reminds us that we are not authorized to substitute our judgment on the evidence for that of the Industrial Commission. The premise of this argument is that since Mr. Gordon made a statement (recorded and transcribed) on June 21, 1963, in which he represented that he had been injured after making a call on a customer at Senath, Missouri, and later retracted that statement, the Commission's decision necessarily involves a choice between conflicting factual statements. The claimant compares this case to Lashbrook v. Clipper Manufacturing turing Co., Mo.App., 377 S.W.2d 785, and other cases in which the employer and insurer have resisted a claim by introducing a claimant's prior inconsistent statement as an admission against interest. The appellants, on the other hand, contend that the determinative facts are largely undisputed, and strongly maintain that the Commission's decision represents its conclusion that the claimant's trip to Hot Springs was a dual purpose trip, and therefore is to be reviewed as a conclusion of law.

In our view, these arguments simply over-complicate the case. It is elementary that for purposes of review, administrative decisions, including Workmen's Compensation cases, are often categorized as 'conclusions of law' or 'conclusions of fact.' The significance of the distinction is generally said to be that questions of law are matters for the independent judgment of the reviewing court, while questions of fact are reviewable only to the extent of determining that the administrative decision is supported by substantial evidence and is not unreasonable. 2 Am.Jur.2d Administrative Law, Section 618, pp. 461--462. So, in our own cases, it is held that when the finding in a Workmen's Compensation case is one of fact, we are only authorized to determine whether the Industrial Commission could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it, and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Co., supra, 337 S.W.2d at 258(5); Brown v. Weber Implement & Auto Co., 357 Mo. 1, 5--6, 206 S.W.2d 350, 352 (1, 2). On the other hand, awards of the Industrial Commission which are clearly reached by interpretation or application of the law, as distinguished from a determination of the facts, fall within our usual province of review and correction. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 296--297(6)(7); Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65--66(3--5).

Doubtless the classification of administrative decisions as being conclusions of law or conclusions of fact is historically sound and judicially useful, but it has also been recognized that the two terms are not amenable to precise definition, and that administrative decisions ordinarily involve both such kinds of determination. ¹ For several reasons, this case does not lend itself to realistic characterization in terms of the law-fact distinction. For one thing, the Commission's finding, if it is sufficient, is a wholly implied finding of the necessary constitutive facts, and one could not confidently say by what steps the Commission reached its conclusion. For another, at least in our view of the case, the merits require determination of the essentially factual question whether the claimant had a personal motive in going to Hot Springs when he did, and the essentially legal question whether, given the personal reason for going, the claimant's journey was a dual purpose trip. We do not regard it as necessary to a disposition of the merits to classify the award as a conclusion of law or a conclusion of fact, or to use the relatively meaningless term 'mixed question of law and fact,' and we decline to do so.

The claimant maintains--at least as we follow him--that the record supports an implied finding that Mr. Gordon had no personal reason to go to Hot Springs; he claims that the record evidence, and the reasonable inferences to be drawn therefrom, conclusively show that he was on his employer's business, at his employer's direction. To determine whether such finding could reasonably be made on the whole record, we will examine the evidence bearing on the nature and purpose of the claimant's trip, taking into consideration, among other things, the Referee's finding to the contrary and the consistency and inherent probability of the testimony....