Henry v. D.A. Odell Motor Car Company
| Decision Date | 02 March 1934 |
| Docket Number | 29,642 |
| Citation | 253 N.W. 110,191 Minn. 92 |
| Parties | ARDYTH HENRY v. D.A. ODELL MOTOR CAR COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Certiorari upon the relation of D.A. Odell Motor Car Company, employer, and Standard Accident Insurance Company insurer, to review an order of the industrial commission awarding compensation to Ardyth Henry for the death of her husband, a salesman of the motor company. Affirmed.
Workmen's compensation act -- injury arising out of and in course of employment -- presumption -- burden of proof.
Under the workmen's compensation act the burden of proving that an accident arises out of and in the course of employment is on the party claiming compensation. Where an employe is killed (1) within his usual working hours, (2) at the usual place of his employment, and (3) while using a tool, machine, or vehicle regularly furnished by the employer to be used by the employe and there is no evidence as to whether at the time of the accident the employe was serving his employer or whether he was pursuing personal business, a presumption arises that the employe was acting within the course of his employment. This presumption sustains the burden of proof until rebutted by satisfactory evidence.
Cobb, Hoke, Benson, Krause & Faegre and Nathan A. Cobb, for relators.
Orr, Stark, Kidder & Freeman, for respondent.
Certiorari to the industrial commission to review a decision awarding compensation for the death of Anthony J. Henry, injured December 29, 1931, while employed by the D.A. Odell Motor Car Company of Minneapolis as an automobile salesman. Death followed on December 31, 1931. A hearing was had before a referee, who filed findings of fact and denied compensation. Respondent appealed to the industrial commission, which heard the matter and filed an order awarding compensation, holding that the accident arose out of and in the course of decedent's employment with the above named employer.
The employer was a distributor of Pierce Arrow cars. It was the customary practice of the employer to furnish a car to each employe and to bear the expense of operation, insurance, and the upkeep of the same. The decedent (hereinafter referred to as Mr. Henry) at the time of his death was using a Ford coupe. He was a salesman in both the new and used car departments, having a roving commission which in the course of his employment took him almost continually upon the streets of the city of Minneapolis. The employer's salesroom was located in the downtown district. Mr. Henry lived at 4832 Twelfth avenue south. The distance between the two places was about six miles. The accident occurred between 1:15 and 1:30 p.m. at the intersection of Forty-eighth street with Park avenue. Henry's home was located on a street paralleling Park avenue, six blocks east thereof. When injured he was driving south on Park avenue and had given no indication of an intention to turn off Park avenue. Had he intended to go to his home by the most direct route, he could have turned east at Forty-eighth street and driven to a point in front of his home. Otherwise he might have proceeded to Forty-ninth street and reached his home by entering an alley from Forty-ninth street in the rear thereof.
Relators' two assignments of error present the sole question here to be decided, namely, did the accident in which Henry was injured arise "out of and in the course of his employment" as it must have done to be compensable? 1 Mason Minn. St. 1927, § 4261.
There is little dispute with respect to the facts except as they bear on the question of the precise business in which Henry was engaged at the time of the accident. It is the relators' claim that Henry was not in the course of his employment and not within the protection of the compensation act for the reason that at the time of the accident he was driving to his home for the purpose of getting a noonday lunch, a private and personal errand not connected with his employment. Further, relators contend that Henry was not within the protection of the transportation amendment to the originally enacted compensation act, 1 Mason Minn. St. 1927, § 4326(j), and that there should be no recovery.
The question of fact respecting the exact nature of Henry's errand at the time of the accident is present in this case because of the testimony of Mrs. Gramling, wife of employer's sales manager, to the effect that Mrs. Henry on the morning of the accident declined an invitation to lunch, stating that she could not accept because she was expecting Mr. Henry home that noon. Mr. Gramling testified to a similar admission on the part of Mrs. Henry. There was testimony as to Mr. Henry's usual lunch habits both at the office and on those occasions when he went home. There was some testimony of a telephone conversation during the noon-hour, although there is no evidence as to its nature. There was also a rather unsatisfactory attempt to show, at least by inference, that Henry was on his way to interview one Sime, who lived in the Minnehaha parkway district, a district most conveniently reached by following the route over which Henry was traveling. There was otherwise no direct testimony throwing light on the question of where Henry was going at the time of the accident.
Respondent had the burden of proving that Henry came to his death as a result of an accident arising out of and in the course of his employment. The law does not require respondent to produce direct evidence of that fact. No particular quantum of proof is necessary. It is sufficient if there is in the record evidence which will reasonably sustain an inference or raise a presumption in support thereof. The many cases decided by the court bearing on the kind and nature of evidence necessary in this class of cases to sustain the burden of proof indicate that the following may serve as useful guides in reaching a proper conclusion:
(1) Did the accident happen within the usual hours of employment?...
To continue reading
Request your trial