Kayser v. Carson Pirie Scott & Co.

1 Reported in 282 N.W. 801. Certiorari to review an order of the industrial commission denying relator's claim to compensation for the death of her husband, Alfred W. Kayser. There is no dispute over the facts. Deceased lived at St. Peter, Minnesota, and respondent Carson Pirie Scott Company is a wholesale merchandise concern located in Chicago, Illinois. At the time of his death and for several years prior thereto, Mr. Kayser was employed by the respondent as a traveling salesman, soliciting orders from retail dealers. His territory included several counties in the southern part of Minnesota, and he used his own car for business. The Bee Hive store located in New Ulm, Minnesota, and operated by J. A. Ochs Son, Inc. had been a customer of the respondent and its salesman Mr. Kayser for many years. In January, 1936, this store burned, and the owners erected and restocked a new store building. Much of this new stock was purchased from the respondent through Mr. Kayser. The latter was at this store Saturday, August 8, 1936, and secured an order from Mr. Ochs, who also wished to see some button samples. It appears that Mr. Ochs was anxious to place an order for buttons as soon as possible but was not satisfied with the samples deceased had with him. Mr. Kayser informed his customer that he expected a shipment of additional *Page 580 samples to be awaiting him upon his arrival at home that evening, and Mr. Ochs testified that it was the understanding between him and deceased that if the latter received the samples he would bring them to New Ulm the next day for Ochs's inspection. The following morning, Sunday, August 9, deceased left his home in St. Peter accompanied by relator and their daughter. The latter was a school teacher and had an appointment for an interview at one o'clock Sunday afternoon with the superintendent of schools at Pipestone, Minnesota, concerning a teaching position. Mr. Kayser drove from St. Peter, through New Ulm, and on to Pipestone, the journey to the latter place being for the sole purpose of enabling his daughter to keep her appointment. New Ulm is located some 32 miles west and slightly to the south of St. Peter, and Pipestone is well over 100 miles southwest of New Ulm. The return trip from Pipestone was started after the daughter's interview had ended between 2:00 and 2:30 o'clock in the afternoon. The party had proceeded only a short distance on the return trip when their car was involved in a collision with a train at a crossing near Balaton, Minnesota. The accident resulted in the deaths of Mr. Kayser and his daughter. The referee found that the injuries causing Mr. Kayser's death did not arise out of and in the course of his employment. This finding was approved by the industrial commission. Respondents seem to concede that on the Sunday in question deceased intended to transact business for his employer at New Ulm upon his return from Pipestone, and we assume such to be a fact. There is no claim that Kayser violated any rule of his employer or acted outside the course of his employment by working on Sunday. Relator contends that, since at the time of the accident the purpose of the trip to Pipestone had been fulfilled and deceased was on his way to New Ulm to transact the business of his employer, he was then engaged in the usual course of his employment. Respondents claim that since the trip to Pipestone was in no way necessitated by anything connected with the employment any injuries sustained while on that trip, going or returning, did not arise out of and in the course of the employment. *Page 581 1. We are of the opinion that the conclusion of the commission was compelled as a matter of law. The perils of modern day travel upon the highways are well known. Risk of accident is an ever-present menace. Whether the risks of an employe's travel are risks of the employment or personal depends entirely on the purpose of the travel. When it is necessitated by the employment, the risks incident thereto become risks of the employment and remain so as long as the employe is acting in the course of his employer's business. But when the employe is engaged solely in the furtherance of his own personal mission or a frolic, he is not acting in the course of his employment and must himself bear the attendant risks of his personal venture. Reinhard v. Universal Film Exch. Inc. 197 Minn. 371, 267 N.W. 223, and cases cited. These matters are well settled. The test for determining whether the travel and its incidental risks are the employer's and thus in the course of the employment, or the employe's, is stated by Mr. Justice Cardozo in Matter of Marks v. Gray, 251 N.Y. 90, 93,167 N.E. 181, 183, as follows: "We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been cancelled. * * * 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, and would have been cancelled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk." Thus the travel both going and returning and its attendant risk is either the employer's or the employe's, depending upon which one's business necessitates the journey. This test, which is sound, received our approval in Loucks v. R. J. Reynolds Tobacco Co. 188 Minn. 182, 246 N.W. 893, a case involving the liability of the employer *Page 582 to a third person injured by the negligence of the employe, and also in Reinhard v. Universal Film Exch. Inc. 197 Minn. 371,267 N.W. 223, a case involving the right of an injured employe to compensation. See, also, Anno. 78 A.L.R. 684. Thus, applying the test stated to the instant case, the result is obvious. It is undisputed that the trip to Pipestone was taken for a purpose entirely divorced from the employment. The fact that Kayser drove through New Ulm on the outgoing trip is immaterial. On that trip he was engaged solely in the furtherance of a personal enterprise, and in principle the situation is the same as if he had followed some other route. The trip to Pipestone would have been made though Mr. Kayser had abandoned his intention to call on Mr. Ochs at New Ulm. Similarly, that journey would have been cancelled upon failure of the private purpose. That deceased intended to transact business of his employer at New Ulm upon his return has no effect on the conclusion to be reached. That call had nothing to do with the trip to Pipestone, and he did not enter the course of his employment merely upon the fulfillment of his personal errand in Pipestone and the start of the return trip. Nor are we presently concerned with the probability that he would have otherwise taken a trip from St. Peter to New Ulm and return on the employer's business. Had he made such a trip, he would have been acting in the course of his employment, but he did not. In any event, the only travel required by the employment on the day in question was to New Ulm and return. The travel to Pipestone and return was his own and so were the risks. Being on his own business on the outgoing trip, he was still on that business while returning, at least until he reached New Ulm. Having concluded that deceased's injuries did not arise out of and in the course of his employment, it is unnecessary to discuss error assigned relating to the exclusion of certain evidence by the referee which could in no way affect the result reached. Affirmed.