Hill v. Royal Gate Dodge

GRIMM, Chief Judge. In this workers’ compensation case, deceased employee was a car salesman for employer. On his way home from work, he was killed while driving a demonstrator ear. His family sought death benefits, which the Labor and Industrial Relations Commission granted. Employer appeals; we affirm. Employer’s sole point alleges that the accident causing employee’s death did not arise out of and in the course of employment. We disagree. Among other things, employer’s written agreement with employee required him to “store the automobile at his home during evenings and off hours.” I. Background Employee worked as a car salesman for employer. Employer furnished him a “demonstrator car.” A signed, written agreement governed the use of the car. Paragraph 4 of the agreement states: The employee shall store the automobile at his home during evenings and off hours and be responsible for reasonable security precautions as well as striving for high visibility of the automobile in order to help advertise the dealer’s product. No personal use of the demonstrator shall be permitted, unless approved in advance by the dealer, except for any incidental personal benefit accruing to the employee relating to transporting the vehicle to and from the employee’s home for storing, security and high visibility of the product.... On December 20, 1991, employee went to work at 1:00 p.m. and was scheduled to work until 9:30 p.m. Employer permitted him to leave work early and he left shortly after 9:00. He drove about a mile and stopped at Patrick’s. Employee was there about an hour and had a small glass of draft beer. He then drove to where his wife worked. He took his wife’s car across the street and filled it with gas. He then drove the demonstrator to his mother’s house to pick up his son. Employee’s wife also went to his mother’s house, arriving around 10:25. Employee was playing with his son. After five or ten minutes, employee, wife, and child left. Employee drove the demonstrator, while wife took [641] child in her car. About a mile from his house, employee lost control of the car and was killed in a one car accident. II. Out of and in the Course of Employment Employer’s only point alleges the Commission erred in finding that employee’s death arose out of and in the course of employment. Employer contends that the accident is not compensable because it occurred when employee was traveling home from work. Employer correctly notes that injuries incurred in going to and coming from work generally do not arise out of and in the course of employment. Davis v. McDonnell Douglas, 868 S.W.2d 170, 171 (Mo.App.E.D.1994). However, the present situation falls outside the ordinary scenario. Here, employee’s written agreement with employer required him to “store the automobile at his home during evenings and off hours.” To state the obvious, in order to store the car at his home, employee had to drive it there. Further, the agreement specifically authorized personal use of the car while “transporting the vehicle to and from the employee’s home.” Also, employer’s general manager answered ‘Tes” when asked: Was [employee] and others who were allowed demonstrators, were they permitted to use them for things like picking up groceries, and also, shall we say, of that type, not going out of town as such, but staying within the general area of where you sell? Finally, it is not necessary for us to determine if employee’s conduct amounted to a deviation. He was on the direct route to his home when the accident occurred. See Gee v. Bell Pest Control, 795 S.W.2d 532, 536 (Mo.App.W.D.1990). Point denied. The Commission’s judgment is affirmed. CRIST and CARL R. GAERTNER, JJ., concur.