1 Reported in 9 N.W.2d 237.
Certiorari to review an order of the industrial commission denying relator compensation.
Since the only question presented by the writ is whether the facts and the inferences reasonably to be drawn therefrom sustain the commission's finding that relator's injury did not arise out of and in the course of her employment, it becomes our duty to review the record in the light most favorable to what the statutory fact-finding body has determined them to be.
Miss Kiley resides at Marshall with her parents and during the time presently important was employed by respondent Sward-Kemp Drug Company, a partnership, operating a retail drugstore in that city. She was in charge of the cosmetic department. Mr. Carlson, the manager and one of the partners of the store, was in active charge thereof, including its personnel. Shortly prior to Friday, September 5, 1941, a trip by Miss Kiley to Minneapolis to attend a cosmetic show came up for consideration between them. As a result thereof, she was directed to attend the show in
connection with her specialized work. Mr. Carlson "sent her" there "with expenses paid by the store." During the agreed time of her absence on this trip (from Friday to Sunday, inclusive) her customary wages were accruing to her wage account. She was given absolute freedom of choice with regard to the route to be taken both when going to Minneapolis and returning therefrom, including the methods and means of transportation. Only two requirements governed her during her absence: she was to attend the cosmetic show and be back on the job the following Monday. Accordingly, Miss Kiley left Marshall for Minneapolis by bus and arrived there about noon. Pursuant to arrangements previously made with her brother, she was met at the bus depot by him, his fiancée, Miss Cliff, and the latter's mother, Mrs. Wilson, who resides at Glenwood. She attended the cosmetic show that afternoon, and, in conformity with an agreed plan, she and the others mentioned drove to St. Cloud during the evening, where both her brother and his fiancee were employed at the Spaniol Hotel. Miss Kiley and Mrs. Wilson spent Saturday shopping and visiting at St. Cloud. The brother and his fiancée were engaged in their work until after midnight the following Sunday morning. They then drove to Mrs. Wilson's home at Glenwood and slept there from about five o'clock Sunday morning until about nine o'clock. Having had breakfast there, relator, her brother, and Miss Cliff were ready to go at 11 o'clock and then started on their trip to Marshall, Miss Cliff driving. She and the brother occupied the front seat, Miss Kiley the rear one. On their way an accident happened about six miles north of Montevideo, which is 39.2 miles north and a little east of Marshall. The regular state highway is No. 59, which is the shortest and best route between the two cities. While so proceeding over a graveled portion of the highway, Miss Cliff suddenly discovered that she was on a T road without having observed any signs so indicating. As a result, she was compelled suddenly to apply her brakes in order to make the turn, and this, together with the loose gravel on the road, caused
the car to tip over, injuring Miss Kiley. These are the facts upon which decision must rest.
All the commissioners were in accord that if Miss Kiley had suffered this accident on her return trip from Minneapolis to Marshall "by any of the direct usual routes" between those cities "there could have been no question that the injury would have been compensable."
The basis for the conclusion reached by the majority of the commission may be thus summarized: Miss Kiley attended the convention in the interests of her employer and in so doing was within the protection of the compensation act; but her trip from Minneapolis to St. Cloud and beyond was personal only and not in furtherance of or in connection with her employer's engagements or interests. But, because she chose a route "close to 100 miles longer," requiring her "to travel much at night"; because, when she and her brother and Miss Cliff set out from Glenwood on Sunday forenoon, "none of them had had much rest or sleep," Miss Cliff having "worked hard in her employment all day Saturday until 2:00 o'clock Sunday morning"; and, because Miss Cliff was unfamiliar with the road upon which she was traveling and while so traveling ran into loose gravel "at a considerable rate of speed [estimated at 45 miles per hour] and had to make a sharp turn in the road," therefore, so it seemed to the majority of the commission, "these hazards cannot fairly be said to have been hazards of her employment" but were "created by the private purpose rather than by her employment." In support they cite the following cases: Matter of Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Loucks v. R. J. Reynolds Tobacco Co. 188 Minn. 182, 246 N.W. 893; Reinhard v. Universal Film Exchange, Inc. 197 Minn. 371, 267 N.W. 223; Kayser v. Carson Pirie Scott Co. 203 Minn. 578, 282 N.W. 801; Lindell v. Minnesota American Legion Pub. Co. 208 Minn. 415,294 N.W. 416; Barrager v. Industrial Comm. 205 Wis. 550, 238 N.W. 368,78 A.L.R. 679.
The following portion of the dissenting commissioner's opinion is helpful:
"Unlike the case of Marks vs. Gray [251 N.Y. 90,167 N.E. 181, and the other cases] cited in the majority opinion, there was only one purpose for the trip from Glenwood to Marshall — the return of the employe to the scene of her employment. The employer and insurer contend that the employe having departed from the purpose of her trip to Minneapolis, could not again renew that purpose unless she returned to Minneapolis and resumed her homeward journey from that city. The employer, by his own admission, did not even suggest the kind of transportation the employe should utilize or the route she should travel in going to or returning from the place to which he had sent her. To hold that the entire trip from Minneapolis to St. Cloud, Glenwood and Marshall must be accomplished before Miss Kiley completed her personal errand, is placing restrictions upon the employe which the employer did not impose. The state highway maps indicate the mileage from Minneapolis to Marshall to be 153 miles, while the distance from Glenwood to Marshall is 109 miles. From the viewpoint of distance, the route taken by Miss Kiley involved seven-tenths of the highway risk as [compared with] that of the route from Minneapolis to Marshall. It does not appear logical to me to say that the employer did not contemplate any risk in the shorter travel from Glenwood to Marshall, when it is admitted that the employe would be entitled to the benefit of the compensation law if the accident had occurred on a return trip made directly from Minneapolis to Marshall.
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1 Reported in 9 N.W.2d 237.
Certiorari to review an order of the industrial commission denying relator compensation.
Since the only question presented by the writ is whether the facts and the inferences reasonably to be drawn therefrom sustain the commission's finding that relator's injury did not arise out of and in the course of her employment, it becomes our duty to review the record in the light most favorable to what the statutory fact-finding body has determined them to be.
Miss Kiley resides at Marshall with her parents and during the time presently important was employed by respondent Sward-Kemp Drug Company, a partnership, operating a retail drugstore in that city. She was in charge of the cosmetic department. Mr. Carlson, the manager and one of the partners of the store, was in active charge thereof, including its personnel. Shortly prior to Friday, September 5, 1941, a trip by Miss Kiley to Minneapolis to attend a cosmetic show came up for consideration between them. As a result thereof, she was directed to attend the show in
connection with her specialized work. Mr. Carlson "sent her" there "with expenses paid by the store." During the agreed time of her absence on this trip (from Friday to Sunday, inclusive) her customary wages were accruing to her wage account. She was given absolute freedom of choice with regard to the route to be taken both when going to Minneapolis and returning therefrom, including the methods and means of transportation. Only two requirements governed her during her absence: she was to attend the cosmetic show and be back on the job the following Monday. Accordingly, Miss Kiley left Marshall for Minneapolis by bus and arrived there about noon. Pursuant to arrangements previously made with her brother, she was met at the bus depot by him, his fiancée, Miss Cliff, and the latter's mother, Mrs. Wilson, who resides at Glenwood. She attended the cosmetic show that afternoon, and, in conformity with an agreed plan, she and the others mentioned drove to St. Cloud during the evening, where both her brother and his fiancee were employed at the Spaniol Hotel. Miss Kiley and Mrs. Wilson spent Saturday shopping and visiting at St. Cloud. The brother and his fiancée were engaged in their work until after midnight the following Sunday morning. They then drove to Mrs. Wilson's home at Glenwood and slept there from about five o'clock Sunday morning until about nine o'clock. Having had breakfast there, relator, her brother, and Miss Cliff were ready to go at 11 o'clock and then started on their trip to Marshall, Miss Cliff driving. She and the brother occupied the front seat, Miss Kiley the rear one. On their way an accident happened about six miles north of Montevideo, which is 39.2 miles north and a little east of Marshall. The regular state highway is No. 59, which is the shortest and best route between the two cities. While so proceeding over a graveled portion of the highway, Miss Cliff suddenly discovered that she was on a T road without having observed any signs so indicating. As a result, she was compelled suddenly to apply her brakes in order to make the turn, and this, together with the loose gravel on the road, caused
the car to tip over, injuring Miss Kiley. These are the facts upon which decision must rest.
All the commissioners were in accord that if Miss Kiley had suffered this accident on her return trip from Minneapolis to Marshall "by any of the direct usual routes" between those cities "there could have been no question that the injury would have been compensable."
The basis for the conclusion reached by the majority of the commission may be thus summarized: Miss Kiley attended the convention in the interests of her employer and in so doing was within the protection of the compensation act; but her trip from Minneapolis to St. Cloud and beyond was personal only and not in furtherance of or in connection with her employer's engagements or interests. But, because she chose a route "close to 100 miles longer," requiring her "to travel much at night"; because, when she and her brother and Miss Cliff set out from Glenwood on Sunday forenoon, "none of them had had much rest or sleep," Miss Cliff having "worked hard in her employment all day Saturday until 2:00 o'clock Sunday morning"; and, because Miss Cliff was unfamiliar with the road upon which she was traveling and while so traveling ran into loose gravel "at a considerable rate of speed [estimated at 45 miles per hour] and had to make a sharp turn in the road," therefore, so it seemed to the majority of the commission, "these hazards cannot fairly be said to have been hazards of her employment" but were "created by the private purpose rather than by her employment." In support they cite the following cases: Matter of Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Loucks v. R. J. Reynolds Tobacco Co. 188 Minn. 182, 246 N.W. 893; Reinhard v. Universal Film Exchange, Inc. 197 Minn. 371, 267 N.W. 223; Kayser v. Carson Pirie Scott Co. 203 Minn. 578, 282 N.W. 801; Lindell v. Minnesota American Legion Pub. Co. 208 Minn. 415,294 N.W. 416; Barrager v. Industrial Comm. 205 Wis. 550, 238 N.W. 368,78 A.L.R. 679.
The following portion of the dissenting commissioner's opinion is helpful:
"Unlike the case of Marks vs. Gray [251 N.Y. 90,167 N.E. 181, and the other cases] cited in the majority opinion, there was only one purpose for the trip from Glenwood to Marshall — the return of the employe to the scene of her employment. The employer and insurer contend that the employe having departed from the purpose of her trip to Minneapolis, could not again renew that purpose unless she returned to Minneapolis and resumed her homeward journey from that city. The employer, by his own admission, did not even suggest the kind of transportation the employe should utilize or the route she should travel in going to or returning from the place to which he had sent her. To hold that the entire trip from Minneapolis to St. Cloud, Glenwood and Marshall must be accomplished before Miss Kiley completed her personal errand, is placing restrictions upon the employe which the employer did not impose. The state highway maps indicate the mileage from Minneapolis to Marshall to be 153 miles, while the distance from Glenwood to Marshall is 109 miles. From the viewpoint of distance, the route taken by Miss Kiley involved seven-tenths of the highway risk as [compared with] that of the route from Minneapolis to Marshall. It does not appear logical to me to say that the employer did not contemplate any risk in the shorter travel from Glenwood to Marshall, when it is admitted that the employe would be entitled to the benefit of the compensation law if the accident had occurred on a return trip made directly from Minneapolis to Marshall.
"It is my opinion that after Miss Kiley had finished her personal call in Glenwood on Sunday morning and started directly for Marshall she re-entered her employment and was in the same status as if she had remained in Minneapolis on Friday and Saturday, visited her friends there and began her return journey from that city on Sunday morning."
We are not impressed with the reasons assigned by the majority. Obviously, when Miss Kiley left Glenwood, she was much nearer her home and place of employment than she would have been if
she had started from Minneapolis. If in order to reënter her employment she had returned to Minneapolis she would have been adding to her trip many needless miles. Nor has any other route than the one taken been suggested as shorter or safer. No sensible person would think of doing otherwise than she did, and certainly her employer never suspected that she would do anything so obviously wasteful of time and money, not to mention the additional Sunday road hazards in the congested Twin City area. Untenable also is the majority view that more risks were likely to exist on a trip from Glenwood to Marshall than from Minneapolis. Every Minnesota citizen of ordinary intelligence knows that more automobile traffic accidents occur on the highways in or near the Twin Cities than elsewhere in the state. Any automobile owner carrying liability insurance as a resident of the Twin Cities knows that it costs him almost twice as much for the same amount of insurance as it does those who reside in the smaller communities. Likewise, according to statistics of the state highway traffic department, the number of traffic accidents per mile is much greater on the highways between the Twin Cities and Marshall than on those between Glenwood and Marshall.2 Since traffic density and consequent traffic risks on the Twin Cities-Marshall highways point to greater safety in travel by the route taken by Miss Kiley, she should not be denied compensation because she chose the route she did.
With regard to the "hard work" performed and "loss of sleep" sustained by Miss Cliff and relator's brother as constituting factors in the chain of causation contributing to relator's injuries, we find it impossible to go along with the majority of the commission. We have as yet not heard of any such reason being assigned or sustained in a compensation case. Contributory negligence is
out. Even if this were a negligence case, Miss Kiley, being a guest passenger occupying the rear seat and having no control of the driver (whose driving here is not criticized), could not be charged, upon this record, with contributory or any other form of negligence. If Miss Cliff and relator's brother had been working as hard and as long at a Minneapolis hotel instead of a St. Cloud hotel, all members of the commission would have been in full accord that compensation should have been granted.
With the wide-open authority given relator to go to Minneapolis and back, she was entitled to take advantage of any convenient route or means of travel. A ride with her brother and his fiancée was entirely permissible, even though it deviated from the direct route. We should carefully distinguish between a situation where the employer furnishes, designates, or pays for a certain type of transportation and one where the employe has a carte blanche authority as to route and means of travel. It seems highly technical and narrow to hold, as did the commission, that, with such liberty of choice, relator had to get herself back to Minneapolis or on a direct route from there to Marshall to be again within her mission. If we were so to hold we would, in the language of the dissenting commissioner, be "placing restrictions upon the employe which the employer did not impose."
1. We should bear in mind the oft repeated rule (Moore v. J. A. McNulty Co. 171 Minn. 75, 79, 213 N.W. 546, 548:
"At the outset it is proper to remind ourselves that the workmen's compensation act is highly remedial and should not be construed so as to exclude any employe from the benefits thereof unless it clearly appears that he does not come within the protection of the act."
2. And here, as in that case, since (171 Minn. 80,213 N.W. 548) there is "no conflict in the evidence" or the inferences to be drawn from it on this phase, "we think that neither the referee nor the commission was justified in holding that the relator's injury did not arise out of his employment."
3. Upon the recited facts, we think the commission should not have adopted the findings of the referee but should have held that the accident arose out of the employment.
The decision of the commission is reversed with directions to award compensation to relator. She is also allowed $100 attorneys' fees in addition to statutory costs and disbursements.
2 Inquiry at this office discloses the following "accident figures" for the year 1941:
Glenwood to Marshall via Benson and Montevideo — 20 accidents, 2 deaths.
Minneapolis to Marshall, via Shakopee, Glencoe, Olivia, and Redwood Falls — 146 accidents, 3 deaths.