McClain v. Welsh Co., 53117

• Decision Date: 09 February 1988
• Docket Number: No. 53117,53117
• Parties: James C. McCLAIN, Claimant-Appellant, v. The WELSH COMPANY, Employer and Home Insurance Co., Insurer, Respondents.
• Court: Missouri Court of Appeals

Page 720

748 S.W.2d 720

James C. McCLAIN, Claimant-Appellant, v. The WELSH COMPANY, Employer and Home Insurance Co., Insurer,

Respondents.

No. 53117.

Missouri Court of Appeals,

Eastern District,

Division Five.

Feb. 9, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 15, 1988.

Application to Transfer Denied May 17, 1988.

Robert J. Keefe, St. Louis, for claimant-appellant.

Edward W. Warner, St. Louis, for respondents.

SIMEONE, Senior Judge.

I.

This is a workers' compensation case of first impression in which the appellant, James C. McClain, seeks judicial review of a decision of the Labor and Industrial Relations Commission on his claim for workers' compensation benefits under § 287.200, R.S.Mo.1986 as a result of permanent and total injuries sustained. The sole question of law to be resolved is whether the permanent and total injuries arose out of and in the course of his employment. We hold that appellant's injuries did not arise out of and in the course of employment and affirm the judgment of the trial court.

II.

Viewing the facts most favorable to the decision of the Industrial Commission and the trial court, as we must, the following facts appear.

The Welsh Company manufactures baby carriages, buggies, strollers, high chairs and other items. It has plants both in St. Louis, Missouri and Trenton, Illinois. Since its inception the Welsh Company has been a family owned and operated business. The president, Albert David Welsh, takes an active part in running the company. The company, as part of its operation, had certain company vehicles available for executive and employee use to run errands and correct shipping and delivery errors in the shipping department. One is a tractor-trailer; the others were two Oldsmobiles and perhaps a station wagon.

The appellant, James C. McClain, an "excellent" employee, was employed by the company for nearly twenty-six years; the last fifteen of which he was in charge of the shipping department overseeing some six employees. Everyone agrees that McClain is a long-time, faithful employee. At the time he suffered his disabling injuries, he was earning $4.50 an hour. In addition to his supervisory responsibilities in the shipping department, although "there was no requirement that [McClain] have a vehicle of his own," McClain performed "some driving duties" for the company in his own Ford Club Wagon (van) which he purchased in 1972. As shipping supervisor, McClain's duties involved supervising the employees in the shipping room, assuring that the correct products were shipped to the proper location, keeping track of inventory and correcting shipping errors. Ninety-eight or ninety-nine percent of McClain's duties involved his presence in the shipping department. The president said that "James was the one that either made us or broke us as far as getting the dollar volume out to the customers." On occasion, he would make pick-ups and deliveries of materials in Illinois. Sometimes he would drive the company's vehicle but at other times he would use his own Ford van. Two or three times a week, usually on his way home from work, he used his own van to make trips to the post office. Sometimes, he would make early morning pick-ups of parts or company supplies on his way to work.

At the hearing before the Administrative Law Judge, David Welsh testified that the bulk of McClain's pick-ups and deliveries consisted of trips to the post office; that there had always been a company car available had McClain chosen to use it. McClain testified that although Mr. Welsh offered the use of a company car to make deliveries, he preferred his own van because "I could drive the van better than I could the car, so I told him I'd rather use the van than the car." He also preferred his own van because the van had no hood so that "you look down at the street in front of you." The Administrative Law Judge found that the company did not "require" McClain to have a van or other vehicle as a condition of his employment, but "the company did not object to [McClain's] use of his own van for company errands when he first expressed a preference to do so or at any time thereafter."

On those occasions when McClain used his own van on company errands and business, he was paid overtime, was reimbursed for the expenses of gasoline, bridge tolls and parking, either from petty cash or the company allowed him to use its credit card. These expenses were treated as business expenses and deducted on the company's tax returns. In 1975 or 1976, while he owned the van, it appears that McClain approached the president indicating that he was having some financial problems. Mr. Welsh then arranged a plan whereby the company would pay one-half of McClain's liability insurance coverage on his van for six months and McClain would pay the other half for the other six months.

The vice president of the company testified that instead of increasing McClain's wages, "we assisted him on his auto insurance premiums. It was a way the company tried to assist him to meet financial obligations ... we could have [paid] Union Electric and say send us his gas or electric bills, but we took his insurance." McClain was the insured on the liability insurance policy, but the policy was kept in the accounting department of the company in a file labeled "Business Insurance." The premiums were deducted on the company's tax returns as business expenses. The payment was treated as "employee advances." Although McClain testified he "really didn't know how the insurance problem came up," he admitted that Mr. Welsh personally talked to him "about how he'd [Welsh] pay six months of your insurance and you pay the other six," because "you were always short of money." No other employee had this insurance arrangement. The six month payments were alternated.

Over the years, the Welsh Company aided other employees by paying legal fees, "buying trailers to live in, co-signing on notes, that type of thing."

Under these circumstances, on the morning of August 2, 1979, at about 6:20 a.m., while on his way to work in his own van and not on any special errand for the company, McClain was involved in a vehicular collision at the intersection of Washington and Spring Avenues near his home. McClain suffered a fracture of the cervical spine resulting in paralysis of his entire body.

Since August, 1979, the appellant, McClain, has required skilled, around-the-clock nursing care. Since his final discharge from the hospital and rehabilitation center, he has lived with his sister, a licensed practical nurse, who caringly performs nursing and many other services.

On June 26, 1980, McClain filed a claim for workers' compensation benefits with the "Division of Workmen's Compensation." In due time the company answered denying that McClain sustained accidental injury "arising out of and in the course of his employment." Through counsel, McClain filed for group medical insurance benefits with one company and sought uninsured motorist coverage proceeds from Farmer's Insurance Group. McClain was paid $10,000 uninsured motorist coverage. The employer, Welsh Company, later claimed a credit against any workers' compensation award in the amount of $10,000 paid to McClain under the van's uninsured motorist provisions of the Farmer's Insurance coverage.

The workers' compensation claim was heard periodically by the Administrative Law Judge from July through October, 1984. On December 10, 1984, the Administrative Law Judge made his findings of fact and rulings of law. His essential findings of fact were that McClain was a "valued" employee; that in addition to his supervisory responsibilities in the shipping department he performed "some driving duties for the Welsh Company." Occasionally he would drive the company's tractor-trailer to pick up or deliver company materials, but at other times he used his own van, and used his van to make trips to the post office for the company "several" times a week, usually on his way home from work. The Administrative Law Judge found that the employer did not "require" McClain to have a van as a condition of his employment, but the company did not object to his use of his own van for company errands when he first expressed a preference to do so or at anytime thereafter. He also found that the company provided gas money, paid him overtime and shared the liability insurance costs. The company did not pay for gas for driving to and from work. On the date of the injury, McClain was not running any errands for the company. The ruling of law was that:

the circumstances relating to claimant driving his personal vehicle to work on August 2, 1979, fail to bring him, at the time of his accidental injury, within any of the recognized exceptions to Missouri's general rule applicable to 'going-to-and-coming-from work' injuries. The employer's acquiescence in, and benefits derived from, claimant's use of his own vehicle to run company errands did not operate to make claimant's trip to work in his own vehicle work-related under the existing circumstances in which he (1) was not running any company errand en route, (2) was not returning any company materials to work, and (3) was neither required nor expected to bring his Ford van to work as a part of his employment agreement with the Welsh Company. I find that claimant's tragic accident injury on August 2, 1979 did not arise out of and in the course of his employment.

The Administrative Law Judge also found that if the injury were determined to have arisen out of and in the course of his employment, the employer and its insurer, Home Insurance Company, be "entitled to no credit for the $10,000 paid to claimant by Farmer's Insurance Group pursuant to the uninsured motorist's provision in the policy of insurance claimant had on his personal vehicle."

McClain appealed to the Labor and Industrial Relations Commission and, in a 2-1 ruling, one commissioner dissenting, the...