Whittemore Bros. Corp. v. De Grandpre

• Decision Date: 02 June 1947
• Docket Number: 36485.
• Citation: 30 So.2d 896,202 Miss. 190
• Court: Mississippi Supreme Court
• Parties: WHITTEMORE BROS. CORPORATION et al. v. DE GRANDPRE.

30 So.2d 896

202 Miss. 190

WHITTEMORE BROS. CORPORATION et al. v. DE GRANDPRE.

No. 36485.

Supreme Court of Mississippi

June 2, 1947

Dent & Ward and Burkett H. Martin, all of Vicksburg, for appellants.

Brunini, Brunini & Everett, of Vicksburg, for appellee.

ALEXANDER, Justice.

Appellee was injured in an automobile collision while serving as a traveling salesman for Whittemore Brothers Corporation. He brought suit by attachment in chancery against the corporation, and its insurer, American Mutual Liability Insurance Company, for benefits under the Workmen's Compensation Act of Massachusetts. From a decree in complainant's favor against the insurance company, this appeal is taken. Whittemore is only a nominal party appellant.

The applicable section of the Massachusetts Act, herein agreed as controlling, is Section 26 of the General Laws, Ter.Ed Chapter 152. It is as follows: 'If an employee who has not given notice of his claim of common law rights of action under section twenty-four, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer, and whether within or without the commonwealth, he shall be paid compensation by the insurer, as hereinafter provided, if his employer is an insured person at the time of the injury; provided, that as to an injury occurring without the commonwealth he has not given notice of his claim of rights of action under the laws of the jurisdiction wherein such injury occurs or has given such notice and has waived it. For the purposes of this section, any person while operating or using a motor or other vehicle, whether or not belonging to his employer, with his employer's general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer, and whether within or without the commonwealth, and any person who, while engaged in the usual course of his trade, business, profession or occupation, is ordered by an insured person, or by a person exercising superintendence on behalf of such insured person, to perform work which is not in the usual course of such trade, business, profession or occupation and, while so performing such work, receives a personal injury, shall be conclusively presumed to be an employee. * * *'

The amount of recovery is not attacked. The issue of liability turns upon an application of the statutory definition of the status of an 'employee' and of the conditions under which it is to be adjudged.

Complainant was employed as a traveling salesman for Whittemore, assigned to the State of Arkansas, but with headquarters at Vicksburg in this State. He made out his own routes, and sent, from time to time, reports to the employer at Cambridge. He employed his own automobile, paid his own expenses, and received a monthly salary. His mailing address was at his home in Vicksburg, to which his employer sent by mail instructions, advices and other communications, including pay checks.

On December 11, 1936, he completed his canvassing at McGehee Arkansas, and set out for his headquarters at Vicksburg. A few miles east of Tallulah, in the State of Louisiana, and upon the direct route to Vicksburg, he was injured in a traffic accident. It was his purpose to resume work in his territory the following Monday, after he had checked his correspondence and forwarded to his employer his proposed routes for the week. He also furnished addresses along the contemplated routes, to which pay checks could be forwarded.

At the outset, we examine whether his injury was one 'arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer'. In testing the factual situation here presented, we may consult the statutory definition of 'employee' as contained in the quoted section, since the tests for determining employee-status and insurer-liability are substantially the same. Harvey's Case, 295 Mass. 300, 3 N.E.2d 756.

Appellee had no fixed hours of work, nor a prescribed routine. The employer authorized and conformed to the arrangement pursuant to which the employed reported to Vicksburg for his mail and for other contacts with the employer. At the time of his injury, he was an employee and following a course prescribed and acquiesced in as a condition of his employment. The injury arose out of an ordinary risk of the street. Was he then actually engaged with his employer's authorization in the business affairs or undertakings of his employer?

Prior to the amendment to the Massachusetts Act, St.1927, c. 309, Sec. 3, injuries arising out of an ordinary risk of the street were not ordinarily compensable. Bell's Case, 238 Mass. 46, 130 N.E. 67. Yet, in Cook's Case, 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114, it was stated that no formula or general statement can afford a solution without reference to the circumstances of each case. Conditions existing at the time are to be examined. Dougherty's Case, 238 Mass. 456, 131 N.E. 167, 16 A.L.R. 1036. In McManaman's Case, 224 Mass. 554, 113 N.E. 287, it was held that when it appears, in view of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury, compensation is to be allowed.

We must therefore piece out a pattern from outstanding Massachusetts cases. In the following cases recovery was allowed: Where a salesman was engaged in teaching his son to drive his car in order to make his services available in the employer's service. Pelletier's Case, 269 Mass. 490, 169 N.E. 434. The opinion cites Mannix' Case, 264 Mass. 584, 163 N.E. 171, where an employee was injured while en route to his place of business to relieve the cashier; where the employee, as part of his employment routine, was en route to lunch. Sundine's Case, 218 Mass. 1, 105 N.E. 433, L.R.A.1916A, 318, and Comerford's Case, 224 Mass. 571, 113 N.E. 460; where an employee was killed by a train while en route home from work, it being found that 'it was necessary for him to use (the route) to go to and from his place of employment.' Fumiciello's Case, 219 Mass. 488, 107 N.E. 349.

Cases are numerous where the injury arose out of an incident disconnected from the employment and devoid of causal connection. See Bell's Case, 238 Mass. 46, 130 N.E. 67; O'Toole's Case, 229 Mass. 165, 118 N.E. 303; Nagle's Case, 303 Mass. 384, 22 N.E.2d 475. Yet, where there is resultant benefit to the employer, arising out or a practice or custom followed by the employee, whereby, by serving the convenience of the latter, there is increased efficiency or expedition, causation has been readily found. Donovan's Case, 217 Miss. 76, 104 N.E. 431, Ann.Cas.1915C, 778; Milliman's Case, 295 Mass. 451, 454, 4 N.E.2d 331; Stacy's Case, 225 Mass. 174, 114 N.E. 206. In Cook's Case, 243 Mass. 572, 137 N.E. 733, 734, 29 A.L.R. 114, the employee was injured while going to the home office by street car, as he did each week, to make a report and turn over collections. The court said 'When the public street is the employee's place of work it becomes virtually his workshop, and he may be exposed to the dangers incident to the use of the streets in the same manner that a factory workman is subjected to the perils of the factory'. See also Higgins' Case, 284 Mass. 345, 187 N.E. 592. Compare Levin v. Twin Tanners, 318 Mass. 13, 60 N.E.2d 6, where the servant's work did not require use of the streets.

The compensable period is not restricted to working hours or the usual place of work, provided the injury occurred while the employee was contributing to the efficiency or success of the employer's work. Holmes' Case, 267 Mass. 307, 166 N.E. 827; Cox's Case, 225 Mass. 220, 114 N.E. 281; Lee's Case, 240 Mass. 473, 134 N.E. 268, 20 A.L.R. 870; Doyle's Case, 256 Mass. 290, 152 N.E. 340. In Von Ette's Case, 223 Mass. 56, 111 N.E. 696, L.R.A.1916D, 641, the servant was injured after he had left his place of work to seek fresh air and better ventilation and while standing upon an outside fire escape. The factors of personal convenience and reinvigoration were controlling, along with the existence of a custom to so seek refreshment. The principle was recognized by us in Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737.

If the injury occurs while the employee is engaged upon some mission of his own, it may be nevertheless compensable if a service is at the same time being rendered for the employer. Batt's Case, 295 Mass. 335, 3 N.E.2d 738; Doyle's Case, 256 Mass. 290, 152 N.E. 340; De Stafano v. Alpha Lunch Co., 300 Mass. 38, 30 N.E.2d 827. In Ferreira's Case, 294 Mass. 405, 2 N.E.2d 454, the employee was assisting a fellow worker, at the latter's request, in removing some waste. Compare Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; A.L.I., Rest.Agency, Sec. 236.

Appellant relies heavily upon Chernick's Case, 286 Mass. 168, 169 189 N.E. 800. Here, the employee was injured while en route to the employer's office to get instructions and route slips for the day. Even though this case is distinguishable from the case at bar, we need not conceal our dissent from its conclusions. Compare the later and better reasoning of Cahill's Case, 295 Mass. 538, 4 N.E.2d 332; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Whalen v. Buchman, 200 Minn. 171, 273 N.W. 678. It seems that Chernick was not actually at work or then so engaged, but was going to the office to get his assignments. The appellee here was continually engaged while...