Johnson v. Skelly Oil Co.

• Decision Date: 06 February 1980
• Docket Number: No. 12512,12512
• Citation: 288 N.W.2d 493
• Parties: Luella Mae JOHNSON, Employee, Claimant and Appellant, v. SKELLY OIL COMPANY, A Corporation, Employer, Self-insurer and Respondent.
• Court: South Dakota Supreme Court

Page 493

288 N.W.2d 493

Luella Mae JOHNSON, Employee, Claimant and Appellant, v. SKELLY OIL COMPANY, A Corporation, Employer, Self-insurer and Respondent.

No. 12512.

Supreme Court of South Dakota.

Argued Sept. 17, 1979.

Decided Feb. 6, 1980.

Ronald L. Schulz, of Loucks, Oviatt, Green & Schulz, Watertown, for employee, claimant and appellant.

Laird Rasmussen, of Dana, Golden, Moore & Rasmussen, Sioux Falls, for employer, self-insurer and respondent.

WOLLMAN, Chief Justice.

Employee, Luella Mae Johnson, appeals from the circuit court's judgment reversing an award of worker's compensation benefits. We reverse and remand for reinstatement of the award.

The Department of Labor (Department) found that Mrs. Johnson was a secretary for Skelly Oil Company in Watertown, that her duties consisted of secretarial duties and occasionally doing the office mailing at the Watertown post office after work, and that on Friday, October 6, 1972, it was her responsibility to do the evening mailing for the office. Because there were not enough stamps at the office at that time, she took the evening mail home with her, telling her husband she planned to do the mailing Monday morning when she could get more stamps.

The Department found that on Monday, October 9, 1972, Mrs. Johnson was on her way to the post office to mail her employer's letters at the time of her accident; that the employer's letters were found in her automobile after the accident; that her injuries arose out of and in the usual course of her employment; that in attempting to mail her employer's letters she was within the course of employment and the injury arose out of and in the course of her employment; and that she was entitled to worker's compensation benefits from her employer, including all medical benefits and permanent disability compensation.

Respondent contends that the testimony of Mr. Johnson regarding his conversations with Mrs. Johnson on the morning of the accident contained inadmissible hearsay. We disagree.

Mr. Johnson was allowed to testify that before she left for work Mrs. Johnson told him: "I have to stop at the postoffice to mail these letters that I brought home on Friday." Mr. Johnson also testified: "She told me she had run out of stamps and it was Friday and she would be mailing them Monday morning when she could get some stamps."

SDCL 19-16-7 (Rule 803(3), Federal Rules of Evidence) provides that a "statement of the declarant's then existing state of mind . . . such as intent, plan, motive, design . . . is not excluded" by the hearsay rule. Although our new rules of evidence were not yet in effect at the time this action was heard by the Department, we conclude that SDCL 19-16-7 encompasses the common law rule of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), that out-of-court statements that tend to prove a plan or intention of the declarant are admissible to prove that the plan or intention was carried out. Hillmon held that decedent's last letters stating his intention to leave Wichita with Hillmon were admissible to prove that he had in fact left Wichita with Hillmon. See also United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961), Cert. den. 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961); Nuttall v. Reading Company, 235 F.2d 546 (3d Cir. 1956); Smith v. Slifer, 1 Cal.App.3d 748, 81 Cal.Rptr. 871 (1969); McCormick, Evidence § 295, at 697 (2d Ed. 1972). Requirements for the use of a declarant's statement of plan or intention are that the statement must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion. 6 Wigmore, Evidence § 1725, at 129 (Chadbourn Rev.1976), citing United States v. Annunziato, supra. See also People v. Earnest, 53 Cal.App.3d 734, 126 Cal.Rptr. 107 (1975) (statement of declarant's intention to burn house was properly received to prove that he did in fact do so); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

Pursuant to this common law rule, the Maryland Court of Appeals held that an employee's statement to his wife prior to leaving for work that it was necessary for him to go to work that morning in order to deliver a gear wheel to his employer was admissible to prove that the employee was in the course of his employment when he was killed while walking from his automobile to his place of employment. Maryland Paper Products Co. v. Judson, 215 Md. 577, 139 A.2d 219 (1958).

The Supreme Court of Nebraska recently held that statements made before the declarant left on the journey during which he was killed were admissible under Nebraska's equivalent of Rule 803(3). Decedent's last phone calls to his wife and father and his discussion with an acquaintance tended to establish the business nature of the trip. These statements were admissible because they evidenced "an intent, design, or plan to do some specific act in the future." Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922, 925 (1977).

Accordingly, we hold that Mr. Johnson's testimony was properly admitted. ¹

In reversing the Department's decision, the circuit court cited Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in which then Chief Judge Cardozo set out the following test to determine workmen's compensation coverage:

To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . 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. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped . . . the travel is then personal, and personal the risk.

167 N.E. at 183.

Professor Larson summarizes the dual-purpose rule as follows:

(W)hen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee's personal journey.

1 Larson, Workmen's Compensation, § 18.12 at 4-218 (1978).

Professor Larson cautions against misinterpreting the Marks v. Gray test:

It is inaccurate and misleading to call this test, as sometimes has been done, the "dominant purpose" test, or to paraphrase it by saying that the trip is a business trip if the "primary" purpose is business. 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 canceled. . . .

Once this test is satisfied,...