Automobile Club Inter-Insurance Exchange v. Bevel
663 S.W.2d 242
Mo.
1984
Check Treatment

*1 testimony jury’s will divert attention

from the real issue and cause confusion

with numerous collateral issues. cause be remand- must reversed and

ed for a new trial. appeal

Other issues raised on are not

likely to occur on retrial and need be

discussed.

Reversed and for retrial. remanded

All concur.

AUTOMOBILE CLUB INTER-INSUR EXCHANGE,

ANCE Plaintiff-Re

spondent,

David BEVEL

Defendants-Appellants.

No. 64922. Missouri, Court of

En Banc.

Jan. 15, 1984.

Rehearing Denied Feb. *2 Louis, Ter- Schlapprizzi,

Donald L. St. Moffitt, Louis, rence F. for defendants- St. appellants. Louis, Jr., Enright,

Ben John G. Ely, St. plaintiff-respondent. for PER CURIAM.

This proceeding declaratory judg- is a for ment In- brought by Automobile Club seeking a Exchange ter-Insurance determi- nation policy as to whether its insurance issued to Club of the Automobile Missouri employee, appel- afforded the Auto Club’s lant liability coverage a suit brought by employee, appel- Bevel, lant sustained in injuries David involving automobile accident a vehicle leased driven by to Auto Club and Ober- reither. The insurance contained li- exempting Exchange exclusion ability suffered if Auto Club arose in The trial court found plaintiff. appealed Defendants judgment Eastern District where the We reversed. ordered cause trans- ferred and review the trial deci- now court’s 83.03; sion as if original appeal. Rule both Bevel and question, date in On the adopt likewise reverse and 83.09. We “in-of- perform elected to had Pudlowski, which follows opinion by J. op- Auto Club as at the paper work marks, fice” quotation opinion without as the noon, they both work. About to field posed the Court. in an automobile and traveled left work Inter-Insur- Respondent Automobile Club for Ober- the Automobile Club leased *3 de- Exchange (Exchange) brought ance a They use. personal and reither’s seeking a deter- claratory judgment action afternoon and during the stops made four with mination that its of insurance accident, approximately at the time of the Club) (Auto Automobile of Missouri Club Bevel to driving Oberreither p.m., 6:30 employee, appellant afforded the club’s transporting the intention of his home with in Oberreither, coverage no liability next Bevel to work the employee, ap- an action brought by us is issue before The determinative Bevel, suffered in pellant David incurred in injuries, whether Bevel’s The by an automobile driven Oberreither. 17,1980, out of arose accident on March Exchange, trial court found in favor of the with the employment of Bevel’s course appeal. and both defendants Missouri. Automobile Club of the fellow The trial court found that missed having The evidence revealed policy pro clause of the exclusion men the two wife for lunch Oberreither’s coverage no appellant vided Oberreither had a tavern and then had a beer at a brought by respect injury with claim They restaurant. at a fast-food hamburger appellant exempts Bevel. That clause proceeded and of beer six-pack a purchased em by suffered Exchange liability garage, As a contract Garage. Murphy’s to injury if such arises ployee of the Auto Club to assigned originally been Murphy’s had The court in serviced subsequently but inju a matter of law that Bevel’s the pur- found as both testified They Bevel. by and employment ries in the of Pat- arose course to celebrate St. the visit was pose by leased to out of the use of an automobile as well as Irishman with an Day rick’s em and Bevel’s fellow busi- regarding Club driven complaints to inquire as Oberreither. Because conclusions ployee, Bevel called Murphy’s, ness. While stated, judg law were we affirm the must that he and Ober- and indicated home office is no ment of the trial court unless there office in to the home return reither would it, unless it support substantial evidence to hour. evidence, or it of the against weight is Garage where Murphy’s leaving After the law. erroneously applies declares or hours, Bevel and over two they stayed had Garron, (Mo. 30 536 S.W.2d Murphy initiative to on their own went 1976). Drink, pur- pub. a National the First have another to the visit were poses The relevant facts are as follows. At acquaint and introduce accident, and to p.m., refreshment time and date of the 6:37 Vallero, friend of Oberreith- a 17,1980, Bevel to Jim March were Bevel and Oberreither supplier equipment er and an automotive of Mis- employed by the Automobile Club Club’s the Auto handled Bevel Each was because representatives. souri as field Bevel and Vallero program. equipment in which their duties assigned territory terms about general briefly with conversed servicing contracting and included purchas- Auto Club’s of the possibility emer- provide service stations to “contract” shortly products, of Vallero’s ing some for members of road services gency thereafter, after consum- addition, departed Vallero of Missouri. Automobile Club Bevel and Ober- one beer. Both ing only pro- charge equipment Bevel was and, a few more beers reither consumed included which Auto Club for the gram tavern, Oberreither departing the before and cloth- equipment automotive furnishing home and to take Bevel offered graciously garages. ing to these contract

245 met before one is tests, both must be Shortly fetch him in the work. morning for Fingers v. Mount compensation. Certainly thereafter the accident occurred. entitled Christ, Church argument forceful could be made that Tabor United (Mo.App.1969). Bevel and Oberreither’s activities were afternoon not work related injured one is Whether the critical issue is whether at the time of depends upon the set the accident they employees. fellow the ac surrounding facts and circumstances The trial court respondent found that Ex- test, of this two-part cident. In the first change’s policy of insurance Auto- that an arises “out injury this court held mobile Club of Missouri offered Oberreither when there is a causal of” the no liability coverage personal the nature of the em connection between suffered Bevel as a result of the acci- he duties or conditions under which ployee’s dent. policy provided coverage un- the result required perform them and *4 der its fellow employee exclusion clause be- v. Board of Educa ing injury. Kammeyer cause Bevel and Oberreither were fellow tion, 122 Under (Mo.App.1965). 393 S.W.2d The employees. court also found that Bev- test, the of the we held in part second injuries el’s arose in the course of employ- Doss, (Mo.App. Griffin v. 411 649 S.W.2d ment and in the business of the Automobile 1967), that “in the course of employment” Club of Missouri. Appellants Bevel and time, place, refers to the and circumstances Oberreither maintain that the trial court injuries under are received. Id. which the erred in finding injuries Bevel’s arose Larsen’s, at 652. See also Workmen’s Com in the course of employment. Based on the Law, 1, pensation Vol. 14.00. § presented, evidence we are unable to agree Generally, an is not liable employer with the conclusion injuries that the arose incurred an employee in the course of employment and rev- we traveling to and from work unless the em erse. is for the of ployee’s traveling convenience The standards used to determine the The court delineated employer. Garrett whether an employee is within the course of specific three circumstances under which his employment are the same as those used be to may employ automobile use incident to determine eligibility for Workmen’s “(1) expense transporta ment: if the of the Compensation benefits. v. Gage Connecti by employer, (2) tion has been assumed the Life, cut 761, General (Mo. 273 764 work was continue at his employee of the to App.1954). Whether an accident and conse destination, (3) the was about quent injuries arose out of or in the course business at the time of the employer’s of employment is a question of law. Gar Garrett, 516, supra, accident.” 600 S.W.2d Comm’n, rett v. 516, Industrial 600 S.W.2d hand, of these In the case at none 519 (Mo.App.1980); Hunt v. Allis-Chalmers categories applies. Co., Mfg. 445 S.W.2d 400 (Mo.App.1969). test, inju the first Bevel’s Under general rule is that an injury The ries did not arise “out of” the “arises out of” the employment if it is a with the Auto Club because there was no natural and reasonable incident thereof and causal between his duties and connection it is “in the employment” if the injuries. Primarily, his Bevel and Ober- accident occurs within the period employ of spend reither were not entitled to the entire place ment at a where employee may the office “in-of afternoon out of reasonably be em fulfilling duties of fice” day. general procedure was that 519; Garrett, ployment, Begey v. supra at they were allowed a lunch hour not a Co., Trucking (Mo. Parkhill 529 546 S.W.2d day drinking visiting full of purported App.1977). They clearly business contacts. left “in the “arising scope terms out of” and when they did not course of” employment separate are two return from the fast-food restaurant after

246 employ no also had supervisor Although arguably lunch. their transport Bevel to his home Murphy’s duty to summarily approved their visit ment the princi in one hour Under Garage, their failure to return time of the accident. Beckwith, was is whether promised as material deviation the test supra ples their act committed negligent employer. business prosecution Their continued to the First Na- journey 852, also Burks (1955). 854 See 281 S.W.2d tional Drink was not within the 258, (Mo.1967); 266 Leap, 413 S.W.2d duties an “in-office” permissible on Co., Public DeMariano v. St. Louis Service primarily Their brief visit with Vallero this (Mo.1960). On 340 S.W.2d only because Bevel Vallero con- social afternoon, Bevel and Oberreither no au- generally.1 versed Bevel also had holiday, celebrating own frolic of their to enter into formal thority agreements prosecution and not in Also, time. or contracts him at employer. existed which apparent business reasons meeting required Murphy’s a visit to or a Ink Sleight Miller v. & Hellmuth with Vallero on that day. (Mo.1969), our 436 S.W.2d Compensation Bevel’s arise in the did not denied Workmen’s Court employment” traveling “course of under the second sales- family benefits part Primarily, drop- of the test. Bevel and Ob- after man killed in auto accident company erreither deviated from held that a social date. The court ping off failing post making out itinerary em- employer is liable because *5 an their Secondly, side calls on customers. aside stepped had abandoned and ployee activities not contem drinking were also in personal to engage from his work duties entertainment, particu business plated as articulated Id. at 628. The court pleasure. sub expense since no vouchers were larly which to the by reaffirmed standard and for footnote. mitted reimbursement. See activities, non-work employee’s measure 6:37 Thirdly, place the accident took or begins test of when a deviation “[t]he hours p.m., well after normal business time matter of is not so much a terminates employ the they obviously were not “about traveled, but and the consumed distance er’s business” at that time. employer’s on primarily rests whether (emphasis Id. being served.” purpose Oil,

Beckwith v. Standard 281 S.W.2d 852 hand, time added). In the case at at the (Mo.1955) driving involved co-employee a purpose was Beckwith, the accident Auto Club’s another to his home. the Mis- Bevel transporting served being by employ- souri Court held that celebrate er, Oil, six and hours when one home after one-half Standard was not liable were which its in an automobile with activities employees ing involved to the directives employee contrary employer’s collision while a fellow driving day. work The driver “in-office” company employees home from function. in the of or did not arise out employee traveling salesman Bevel’s the Automobile employment who was use of the given Standard if Bevel and Ober- but was Missouri. Even automobile for business Club of purposes, in work- legitimately engaged drive reither had authorized to it to and work visits, driving he had “ma- activities their each court held that related scope route home was not within terially permitted deviated” from the Bevel not further home not act within the because it did his own and did driving purpose. a fellow At the time employer’s while accident, Bevel home. 281 and Oberreither knows, any good busi a suc action should it was not a salesman to be This infer that 1. As salesman, up “pick acquainted meeting get the other cessful one should en ness rather a check.” evidence in this case is salesmen’s Bevel counter as contends. picked up that Bevel and Vallero his own tab. up ed, significance picking and what longer acting in their as fellow capacity is, ruled as matters of should be employees and the leased to Ob- the check automobile to do. The erreither curiam seems law, per Auto Club was not as the cu- employer per conveyance. expressed factual conclusions with the liberal to be at odds appear riam Therefore, we reverse and hold that compensation the workers’ construction of policy issued by appellee, [respondent] Wolfgeher mandated recently law most Automobile Club Inter-Insurance Ex- Service, Inc., 646 S.W.2d Cartage v. Wagner change, to Automobile Club of Missouri 1983). (Mo. provides coverage defendant-appellant respect bodily inju- Oberreither with record, however, It clear from the seems ry claim defendant-appellant Bevel. trip purely person luncheon was a that the al There is no indication that Bev mission. HIGGINS, BILLINGS, JJ., GUNN and el and could not have dined concur. chose, separate they together wherever RENDLEN, C.J., and luncheon at some distance ly, trip WELLIVER and or that a DONNELLY, JJ., concur in their result. from the office had relation to Inasmuch as did not BLACKMAR, J., concurs in result in sep- office, ap take from the it is away Bevel arate opinion filed. hold that under propriate to Oberreither’s BLACKMAR, Judge, concurring in result. him likewise was not taking to drive home The insurance policy in issue is the recip related, injury work and that the to Bevel rocal of workers’ compensation, for the sim not arise out of or in the course of did ple reason that the employer would not not need to employment. We do consider want to provide an employee with both anything except trip luncheon compensation benefits and responsive insur home the session at trip following Bevel’s ance coverage. notes, As the per curiam First National Drink. The cases of Beck decisions in insurance cases of this kind are with v. Standard Oil 281 S.W.2d 852 precedents in compensation I cases. believe (Mo.1955); Miller v. Hellmuth Sleight & *6 per that goes curiam to unnecessary (Mo.1969); and Ink 436 S.W.2d 625 lengths reviewing in findings factual Commission, Garrett v. Industrial court, the trial that in so it doing departs in line with (Mo.App.1980) S.W.2d 516 are from the Carron, standards of Murphy express. the views I (Mo. S.W.2d 30 1976), that it reject respondent’s plea I would for a spawn may confusion in the law of workers’ compensation rule of automatic workers’ compensation. Problems in the Court of operating if an coverage Appeals opinion were in instrumental our car” at the time his riding “company in decision grant transfer. I join cannot injury. disposition which perpetuates prob these agree I the circuit court erred in lems. denying coverage join in the reversal. decided, however, case can be with- out explanation detailed of the business and

non-business aspects of the visitations to

Murphy’s garage or First National Drink.

Problems of mixing pleasure business and

often arise compensation under workers’

law, and involve factual I determinations.

am not as to prepared say questions

whether a one hour delay returning from

to two constituted a deviation from the

course of employment, whether a visit to supplier customer or was authoriz-