DONALD G. HEIDTMAN, APPELLANT, v. NEVADA INDUSTRIAL COMMISSION, RESPONDENT.
No. 4448
In the Supreme Court of the State of Nevada
February 7, 1962
[Rehearing denied March 7, 1962]
368 P.2d 763
BADT, C. J., and MCNAMEE, J., concur.
William J. Crowell, of Carson City, for Respondent.
By the Court, MCNAMEE, J.:
Appellant alleges in his complaint that on January 21, 1957 he suffered injuries by accident arising out of and in the course of his employment and that he is entitled to recover all benefits provided by the Nevada Industrial Insurance Act. He further alleges that he was a salesman on said day and his employment as such could be carried on either at the place of his employer‘s business or elsewhere on any day of the week including Sundays. The answer of respondent admits that appellant was employed as a salesman on January 21, 1957 but denies that at the time appellant suffered injuries he was engaged in the course or scope of his employment.
The trial before the court without a jury resulted in a judgment in favor of respondent. Appeal is from said judgment and the order denying appellant‘s motion for a new trial.
Appellant testified that on the day he received his injuries he was employed as a used car manager for an automobile establishment in Reno, Nevada, at a fixed salary plus commissions. His basic hours of employment were from 8:00 A.M. to 6:00 P.M., but he was on call at all times including Sundays and holidays. Pursuant to his duties as salesman he was authorized to take any car from the used car lot for the purpose of demonstration. He was interested in sports, particularly in the sport of archery. Two or three days before an archery meet to be held at Sutcliffe, Nevada, he met one Waddell who at that time professed interest in a Cadillac automobile. At that time appellant told Waddell that he
Waddell corroborated the foregoing testimony with respect to the conversations between him and appellant and the fact that he had not examined the Cadillac at any time. Waddell further testified that he did not thereafter purchase the Cadillac or any other car from appellant or his employer. This is the only testimony given before the trial court.
The only other evidence consists of the written statement given by appellant to the Nevada Industrial Commission dated February 10, 1957, wherein appellant related that he drove his employer‘s Cadillac to Sutcliffe, Nevada, because Waddell had professed interest in buying a Cadillac and he knew Tony Waddell would be at Sutcliffe: “When I arrived there the shoot had started so I entered also. I saw Tony and took him aside and showed him the Cad. He professed interest but thought he would like a later model. We talked about cars and continued to shoot. Dan Jenkins and I later got together and talked automobiles and he said he would buy a new one in a month or two from me. Upon learning that I could not make a sale at that time I returned to the car. On the way I met with my accident and broke my foot.”
In its decision the court below said: “[I]t must be assumed that plaintiff reached his employment destination, that he then deviated beyond his business destination by engaging in the archery competition and then upon his return to the employment destination he was injured. The exact point of determination then is whether he was within the scope of his employment at the time he was injured. In deciding that he was not, I think it first must be assumed that plaintiff was within the scope of his employment when he went out to Sutcliffe and that he was in the process or about to resume that employment when he started for the car to intercept Waddell.”
The trial court‘s finding that appellant was covered by the Industrial Insurance Act, while he was en route to Sutcliffe and up until the time he entered the archery meet, is conceded by the parties to be proper. It is the further finding (that appellant deviated from his employment when he entered the meet and had not resumed his status as an employee at the time he was injured) which the appellant attacks.
Whether or not appellant while on a business trip deviated therefrom would ordinarily be a question of fact for the trial court, which question in the present case was decided in the affirmative and against the appellant. True it is there is no formal finding to this effect
Evidence in the record which supports a finding that a deviation occurred is the testimony of appellant that he intended to enter the archery meet at the time he left Reno coupled with his special interest in the sport of archery, he being at that time Nevada State Field Governor for the National Field Archery Association. In this connection the trial court said: “While he [appellant] admitted that he might have gone to Sutcliffe to take part in the archery meet and as a sideline to sell a car, he had serious doubts as to whether the sole purpose in going to Sutcliffe was merely to take part in the contest.”
Further facts relevant to deviation are: Appellant took with him to Sutcliffe his archery equipment; he entered the archery meet at Sutcliffe; his injury occurred while he was on the archery course; the sales prospect, Waddell, at no time on the day of appellant‘s accident inspected the car which appellant hoped to sell to him and no sales negotiations were had at any time thereafter between appellant and Waddell; and appellant at one point declined to testify positively that a prospective car sale and not his archery interests was what motivated him to go to Sutcliffe.1
[Headnotes 5-7]
Appellant did intimate in his testimony that it was desirable for him to enter the archery meet as a matter of good salesmanship, but in view of the inconsistencies contained in appellant‘s written statement in evidence
We are thus confronted with the aforesaid evidence of deviation and the reasonable inferences arising therefrom. A proper inference could be that even if appellant had a dual purpose in going to Sutcliffe (which could result in his being covered under the act while he was en route to Sutcliffe), his entry into the archery meet after arriving at his destination was a matter wholly personal concerning his own pleasure and not connected with or incidental to his employment as an automobile salesman.
A finding of fact may be based upon an inference which is supported by the evidence. Cummings v. Kendall, 41 Cal.App.2d 549, 107 P.2d 282; Turner v. Vineyard, 46 Del. (7 Terry) 138, 80 A.2d 177, 179.
We hold as a matter of law that there is sufficient evidence to sustain the court‘s conclusion that appellant‘s entry into the meet was personal and any risk resulting therefrom likewise would be personal. Therefore it was proper for the trial court to conclude that a deviation from his employment had occurred at the time of appellant‘s injury.
The evidence discloses that appellant was en route to the parking lot where he had left the Cadillac, and although appellant‘s testimony is not consistent on this point we can assume that he expected to see Waddell there. The accident occurred before he reached the parking lot and while he was still on the archery course.
In 1 Larson, Workmen‘s Compensation, sec. 19.33, at 276, the author states:
“We come now to the deviation problem which has produced the sharpest split of opinion of all: the question whether an employee, who has completed a personal side-trip and is moving back toward his business route when injured, should be deemed to have resumed his employment as soon as he starts back, or only when he actually regains the main business route or destination. * * * The majority of compensation cases deny recovery in these circumstances, on the ground that a side-trip is a personal deviation until completed, but a minority have taken the position that the journey toward the employment destination or route should be compensable, because the personal motivation is spent, and the employee‘s object has become the single-minded purpose of getting to his employment destination.”
Some of the compensation cases supporting the majority view are as follows:
Red Arrow Bonded Messenger Corp. v. Industrial Acc. Commission of Cal., 39 Cal.App.2d 559, 103 P.2d 1004; Fidelity & Casualty Co. of N. Y. v. Moore, 143 Fla. 103, 196 So. 495; Parker v. Twin Falls County, 62 Ida. 291, 111 P.2d 865; Public Service Co. v. Industrial Commission, 395 Ill. 238, 69 N.E.2d 875; Warren v. Globe Indemnity Co., 217 La. 142, 46 So.2d 66; Carner v. Sears Roebuck & Co., 337 Mich. 219, 59 N.W.2d 263; Kayser v. Carson Pirie Scott & Co., 203 Minn. 578, 282 N.W. 801; Duggan v. Toombs-Fay Sash & Door Co., 228 Mo.App. 61, 66 S.W.2d 973; Kinkead v. Management & Engineering Corp., 103 S.W.2d 545 (Mo.App. 1937); Luke v. St. Paul Mercury Indemnity Co., 140 Neb. 557, 300 N.W. 577;
Examples of the decisions supporting the minority views are:
London Guarantee & Accident Co. v. Herndon, 81 Ga.App. 178, 58 S.E.2d 510; Macon Dairies v. Duhart, 69 Ga.App. 91, 24 S.E.2d 732; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264.
Duggan, supra, distinguishes Sawtell, supra, both Missouri cases, with these words: ”Sawtell [at the time of the accident] was on his way to the home of a prospective buyer, and was in the course of his employment. Not so with Duggan in this case.”
Although cases involving the liability of an employer to a third person injured by the negligence of an employee in applying the deviation rule rest upon an entirely different rationale than that in workmen‘s compensation cases, it is interesting to note that even in tort liability cases the majority rule is that the relation of master and servant is not restored until the personal deviation is completed. The case of Murphy v. Kuhartz, 244 Mich. 54, 221 N.W. 143, 144, in commenting on the two views, states:
“There are cases which hold that where a servant in driving his master‘s truck so deviates from his regular route as to suspend the relation of master and servant, it is immediately restored when he starts to return. A leading case of this class is Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97, 22 A.L.R. 1382. But by better authority it is held that the relation of master and servant is not restored until he has returned to the place
where the deviation occurred or to a corresponding place, some place where, in the performance of his duty, he should be.”
It is to be noted that the Michigan Supreme Court in Carner v. Sears Roebuck & Co., supra, a workmen‘s compensation case, quoted with approval the said language in Murphy, supra.
The trial judge in denying compensation herein, in our opinion, properly followed the majority rule which in effect is a holding that the appellant had not terminated the deviation or resumed his status as an employee at the time of the injury. Denial of compensation therefore was not error.
Affirmed.
BADT, C. J., concurs.
THOMPSON, J., dissenting:
I dissent.
The lower court found that Heidtman was within the course of his employment and covered by the Industrial Insurance Act while en route to Sutcliffe and until the time he entered the archery meet. The commission concedes that finding to be correct under the circumstances of this case. With such finding and concession before us, I believe that the conclusion reached by the court below and the majority here is incorrect as a matter of law. Heidtman‘s business was to sell cars. Yet, the conclusion reached in this case announces that he was within the course of his employment when he had no possibility of making a sale, i.e., while driving alone from Reno to Sutcliffe, but that upon arrival at the appointed place to meet his customer and attempt to sell him a car he stepped out of bounds. The opportunity to sell a car to Waddell was at the archery meet where he was in participation. If Heidtman was within the course of his employment while driving to the appointed place for business, he must be considered to have been within the course of his employment while at such place attempting to make the sale. “Where the employee is combining his own business with that of his employer, or attending
The lower court determined that Heidtman deviated from the course of his employment when he entered the archery meet. This is, of course, a conclusion of law drawn from the evidence. The majority seek to support such conclusion by reciting “evidence in the record which supports a finding that a deviation occurred” and by a further recitation of “facts relevant to deviation.” However, from an examination of the facts therein referred to, it does not appear that Heidtman had departed from the place where he had arranged to carry on his business with Waddell. Nor does it appear that he left his prospective customer to go elsewhere. To the contrary. He remained at Sutcliffe and even attempted to discuss business with Waddell during the archery meet. This is of paramount significance because the claimed deviation must be identifiable, before the employee is removed from the course of his employment. 1 Larson, Workmen‘s Compensation, sec. 19.00. Every case, without exception, cited by the commission in its brief, or referred to by the majority herein, wherein it was held that a deviation occurred, involved an identifiable deviation; indeed, in each instance the employee was not at the place where his business was to be carried on, nor was he, if a salesman, with his prospective customer. See each case cited by the majority at paragraphs 21 and 23 of its opinion. Absent such facts, an identifiable deviation does not appear from the record before us.
It is, therefore, my view that we are dealing only with the dual purpose trip problem, and not with the question of an identifiable deviation from the course of employ-ment. The most that can be made of Heidtman‘s participation in the archery meet is that he was serving two purposes at once, his pleasure, and the business of his employer. All authorities agree that this circumstance,
Benjamin Cardozo, when Chief Justice of the Court of Appeals of New York, wrote the landmark opinion, Marks v. Gray, 251 N.Y. 90, 167 N.E. 181. He stated, inter alia: “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 canceled. * * * 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 canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”
Let us apply such test to the case before us. The commission conceded that Heidtman was within the course of his employment while traveling to Sutcliffe! The lower court found such to be the fact. We know, therefore, that service to his employer was, at least, a concurrent cause of his trip. We know that the inference was permissible that the trip would have been made though his private errand, participation in the archery meet, was canceled. We know that his work had a part in creating the necessity for his trip. Therefore, absent an identifiable deviation thereafter, which does not appear for the reasons heretofore mentioned, Heidtman must, as a matter of law, be considered to have been within the course of his employment when injured.
In Fisher v. Fisher, 226 Minn. 171, 32 N.W.2d 424, a salesman made an appointment with a prospective customer to discuss home insulation. He was to meet his customer during the evening at a public playground where the customer was to umpire a baseball game. He spoke with his customer and was advised that the game would be through in a few minutes and to wait for him.
The cases of Fintzel v. Stoddard Tractor, 219 Iowa 1263, 260 N.W. 725, and Sawtell v. Stern Bros. & Co., supra, support my view, though in the latter case the salesman did depart
For the reasons mentioned, I would conclude that Heidtman sustained an injury by accident, arising out of and in the course of his employment.
THOMPSON, J.
Notes
“A. On that particular day, I seriously doubt it.
“Q. But it could have been true?
“A. I could have gone out, yes. I must admit it.”
| Agreed sum due Knier for work on dwelling.......... | $2,038.55 |
| Contract price for motel rehabilitation.................. | 25,709.55 |
| $27,748.10 | |
| Less $23,138.60 paid Knier and $1,076.49 work done by Azores and Brunzell which Knier should have done...................................................... | - 24,215.09 |
| Due Knier.................................................................... | $3,533.01 |