Wilcox v. City of Winner

• Decision Date: 16 November 1989
• Docket Number: No. 16466,16466
• Citation: 446 N.W.2d 772
• Parties: Judy WILCOX, Executrix of the Estate of Garry Thomas Wilcox, Deceased, Employee and Claimant/Appellee, v. CITY OF WINNER, South Dakota, Employer, and St. Paul Fire and Marine Insurance Company, Insurer, Defendants/Appellants.
• Court: South Dakota Supreme Court

Page 772

446 N.W.2d 772

Judy WILCOX, Executrix of the Estate of Garry Thomas Wilcox Deceased, Employee and Claimant/Appellee, v. CITY OF WINNER, South Dakota, Employer and St. Paul Fire and Marine Insurance Company, Insurer Defendants/Appellants.

No. 16466.

Supreme Court of South Dakota.

Argued April 25, 1989.

Decided Oct. 11, 1989.

Rehearing Denied Nov. 16, 1989.

Wally Eklund of Johnson, Eklund & Davis, Gregory, for employee and claimant/appellee.

Paul T. Barnett of Siegel, Barnett & Schutz, Sioux Falls, for insurer and defendants/appellants.

MORGAN, Justice.

This is an administrative appeal by the city of Winner, South Dakota (Employer), and the St. Paul Fire and Marine Insurance Company (Insurer), from a decision of the circuit court, which reversed a decision of the South Dakota Department of Labor (Department) dismissing a worker's compensation petition. We reverse the trial court and reinstate Department's decision.

Judy Wilcox (Claimant), executrix of the estate of Garry Wilcox, commenced a worker's compensation claim on behalf of herself and her three children against Employer and Insurer, seeking death benefits arising out of her husband's fatal automobile accident. Her husband, Garry Wilcox (Wilcox), was employed as a part-time policeman for Employer from late September 1985 until his death on October 24, 1985. He was also a volunteer fireman, farmer and operator of a hunting lodge for profit. Wilcox died when his pickup truck ran into a loaded 2 1/2-ton grain truck stalled on a county highway 3.3 miles north of Winner.

At the time of the accident, Wilcox was not on duty. However, at issue is whether what Wilcox was doing at the time of his accident arose out of and in the course of his employment. Some background information is necessary at this point.

Two days before the accident, a dog was released from the Winner city pound to Gabriel Medicine Eagle (Medicine Eagle) of Ideal, South Dakota, pursuant to the city's Adopt-a-Pet program. The dog was released to Medicine Eagle with the understanding that if the dog's owner claimed it, Medicine Eagle would have to return the dog. The next day, the dog's owner reported her dog missing. Assistant Police Chief Orson Long Crow advised Police Officer Vrbsky (Vrbsky) that Medicine Eagle would have to return the dog. During that evening when Vrbsky and Wilcox were working together, Vrbsky mentioned that he was going to Ideal the following morning, on his day off, to pick up the dog. Wilcox commented that he would be fencing near the Ideal area that morning and had to come into Winner at noon to meet some hunters. He offered to pick up the dog and bring him to Winner. Medicine Eagle testified that Wilcox picked up the dog at approximately noon on October 24, 1985. The accident occurred shortly thereafter. The dog was not at the scene of the accident when police arrived but showed up several days later and was returned to its owner.

Claimant commenced this worker's compensation action. Department dismissed Claimant's petition on the basis that Wilcox's accident did not arise out of and in the course of his employment. Claimant appealed to the circuit court. After hearing oral arguments, the trial court reversed Department's decision, ruling that Wilcox's accident arose out of and in the course of his employment. Employer and Insurer appeal.

On appeal, they raise the following issues:

1. Whether Wilcox's death arose out of and in the course of his employment, and

2. Whether Employer and Insurer are entitled to their costs for the administrative hearing.

Our standard of review in this case is governed by SDCL 1-26-36. This requires us to "give great weight to the findings made and inferences drawn by [Department] on questions of fact." Id.; Finck v. Northwest School Dist. No. 52-3, 417 N.W.2d 875 (S.D.1988). Further, we review the record in the same light as does the trial court and determine whether or not Department's decision was clearly erroneous in light of all the evidence. Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986). However, on questions of law, we may "interpret statutes without any assistance from the administrative agency." Permann v. S.D. Dept. of Labor, 411 N.W.2d 113, 117 (S.D.1987).

No injury is compensable under worker's compensation statutes unless it "arises out of and in the course of employment." SDCL 62-1-1(2). In Roberts v. Stell, 367 N.W.2d 198 (S.D.1985), we discussed the term "arising out of and in the course of employment." We said that to be compensable the injury must have "its origin in the hazard to which the employment exposed the employee while doing his work." Id. at 199.

It is conceded that Wilcox was in the course of his employment at the time of his accident. However, that does not conclude our discussion. Department found that he was engaged in a two-purpose (dual purpose) trip: (1) his personal purpose in traveling from his farming operation in the Ideal vicinity to meet some hunters in Winner as part of his guiding activity, and (2) a business purpose to return the dog from Ideal. In light of all the evidence, this finding was not clearly erroneous. Therefore the "dual purpose doctrine," recognized by this court in Johnson v. Skelly Oil Company, 288 N.W.2d 493 (S.D.1980), applies.

We summarized 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.

Id. 288 N.W.2d at 495 (quoting 1 Larson, Workmen's Compensation, Sec. 18.12 (1978)).

Employer and Insurer point out that both Department and the trial court correctly held that Johnson is controlling. They contend, however, that only Department correctly applied the "dual purpose doctrine," finding that although the trip served both a business and personal purpose, it was not classified a business trip because Employer would not have caused the trip to be made had it not coincided with Wilcox' personal trip. They argue further that the trial court placed undue emphasis on the business purpose that benefitted the Employer, thereby invoking compensation. We agree.

By definition, the "dual purpose doctrine" requires that one purpose be business the other personal. The issue of whether the trip is classified as either "business" or "personal" turns on whether the business purpose created the necessity for travel. It is a common-sense judgment that, apart from the opportunity to combine business with pleasure, the business purpose would either not have been done at all, or would have been done in some way not involving a special trip. 1 Larson, supra Sec. 18.14. If the business errand had no part in creating the trip, if the journey would have gone forward even though the business errand had been dropped, the travel is then personal, and personal the risk. Johnson, supra.

The record clearly reflects that Wilcox had originally made his plans to do his farming work near Ideal and his appointment to meet the hunters before the question of picking up the dog ever arose. The issue then becomes: Would the Employer have caused a trip to Ideal to be made if it had not coincided with Wilcox' personal trip to meet the hunters? While it is true that Vrbsky had intended to make a trip to Ideal to secure the dog, he had not been specifically directed to do so. Winner police do not have jurisdiction in Ideal. SDCL 9-29-1 and 11-6-4.2. Winner's Chief of Police testified that the proper procedure to follow in a case such as this would be to contact either the sheriff, BIA or Medicine Eagle to return the dog to Winner. He also testified that officers are told they are not to leave Winner's city limits for police business except in the case of an emergency. Based upon this testimony, it cannot be said that Employer necessitated Wilcox' trip or would have caused this trip to be made by another officer if it had not coincided with Wilcox' personal trip. In fact, Employer did not request that either Vrbsky or Wilcox do so. Officer Vrbsky decided to retrieve the dog of his own accord and on his day off. It appears Wilcox was merely performing a personal favor for a fellow officer during off-duty time when he offered to go instead. Wilcox' offer to pick up the dog has the distinct quality of an afterthought, once his personal trip had been decided upon.

Because Wilcox' trip was a personal trip, his unfortunate death is not compensable. Johnson, supra. Therefore, we reverse the trial court and reinstate Department's decision which dismissed Claimant's petition.

As their second issue, Employer/Insurer contend that they are entitled to costs in the amount of $514.09, pursuant to SDCL 62-7-15 and 15-17-15, for the administrative hearing below because they were the prevailing party.

SDCL 62-7-15 provides:

The fees and mileage for attending as a witness before the department shall be the same as allowed in circuit court. All costs incurred in the hearing before the department may be taxed against the losing party or an equitable apportionment made thereof by the department according to the facts. (Emphasis added.)

By the use of the term "may be taxed" in this section, the legislature indicated an intention to put costs of the administrative proceeding within the discretion of Department. This language is clearly permissive rather than mandatory. Absent an abuse of discretion, Department's decision on this issue must stand.

It is long-standing public policy that worker's compensation statutes...