ELIZABETH J. SNYDER v. GENERAL PAPER CORPORATION AND ANOTHER.
No. 40,230
Supreme Court of Minnesota
August 11, 1967
152 N.W.2d 743
LeVander, Zimpfer & Tierney, for respondent.
NELSON, JUSTICE.
Certiorari to review an order of the Industrial Commission allowing compensation to respondent for the death of her husband resulting from asphyxiation.
Decedent employee was a paper salesman for General Paper Corporation, a paper wholesaler located in Minneapolis. During his employment for 8 years preceding his death, he was assigned various accounts which he would attempt to persuade to make purchases from his employer‘s line of paper products. One of employee‘s accounts was thе Sono-Press Company which was buying paper for record jackets from a competitor. On January 16, 1964, employee and one David Hersk, an officer of the Sono-Press Company, took a planned business trip, via Chicago, to visit the Simpson Lee Paper Company in Vicksburg, Michigan, to examine paper for record jackets which employee hoped to sell to Sono-Press. The record indicates that the arrangements for the trip were made by employee with employer‘s authority and knowledge. The expenses of transportation, meals, rooms, taxi fare, and reasonable entertainment were to be paid for by employer.
The Industrial Commission found that the death of employee was caused by choking to death on a piece of meat, the result of an injury arising out of and in the course of his employment.
““Personal injury’ means injury arising out of and in the course of employment * * * ”
Section
“Except as excluded by this chaptеr all employers and employees are subject to the provisions of this chapter. Every such employer is liable for compensation according to the provisions of this chapter and is liable to pay compensation in every case of personal injury or death of his employee arising out of and in the course of employment without regard to the question of negligence * * *.” (Italics supplied.)
In Nelson v. City of St. Paul, 249 Minn. 53, 81 N. W. (2d) 272, this court held that, if the injury has its origin with a hazard or risk connected with the employment and flows therefrom as a natural incident
In the more recent case of Lange v. Minneapolis-St. Paul Metropolitan Airports Comm. 257 Minn. 54, 56, 99 N. W. (2d) 915, 917, the court again discussed the foregoing terms and held that the term “arising out of” as used in the Workmen‘s Compensation Act refers to the causal connection between the employment and the injury, whereas the term “in the course of” refers to the time, place, and circumstances of the accident causing the injury. Thus, it is held in this state that an injury arises out of the employment if it arises out of the nature, conditions, obligations, or incidents of the employment; in other words, out of the employment looked at in any of its aspects. Breimhorst v. Beckman, 227 Minn. 409, 35 N. W. (2d) 719; Olson v. Trinity Lodge, 226 Minn. 141, 32 N. W. (2d) 255. In the Olson case, this court said (226 Minn. 144, 32 N. W. [2d] 257):
“The phrase ‘arising out of’ the employment expresses the factor of origin, source, or contribution rather than cause in the sense of being proximate or direct. Compensation acts are sui generis, and care must be taken not to defeat their purpose by applying, through long judicial habit, concepts belonging to fundamentally different fields of litigation.”
The referee stated that the instant case is governed by the decisions in traveling salesmen cases. 1 Larson, Workmen‘s Compensation Law, § 25, summarizes these:
“Employees whose work entails travel away from the employer‘s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels, or eating in restaurants away from home are usually held compensable.” (Italics supplied.)
In Kaletha v. Hall Merc. Co. 157 Minn. 290, 196 N. W. 261, the
“The procuring of food or other refreshments by an employe, although personal in character, is considered so far incidental to the employe‘s work, that injuries received while procuring such food and refreshments may be found to arise out of and in the course of the employment; provided the employe acts in a reasonable and prudent mannеr, and the injuries occur while he is upon the employer‘s premises or is subject, as an employe, to the employer‘s control.”
We have held that if a salesman meets with accidental injury or death while entertaining a customer of his employer, such injury or death is presumed to be within the course of his employment and to arise therefrom. Ohlsen v. J. G. Dill Co. 222 Minn. 10, 23 N. W. (2d) 15. In that case the employee was drowned while on a fishing trip with a customer. In holding his death was compensable, this court stated (222 Minn. 15, 23 N. W. [2d] 18):
“We have further held that, where an employe is specifically instructed and encouraged to entertain customers and prospective customers as a means of developing good will and increasing the business of his employer, accidents sustаined while in the course of such activities are within and covered by the compensation act.”
Under such circumstances courts look to the facts that the employer pays for the entertainment of customers and that the policy of the employer is to create good will and to promote his business by such entertainment. Thus, the court went on to say in the Ohlsen case (222 Minn. 16, 23 N. W. [2d] 19):
“There is further evidence that, to reimburse decedent for the sums paid out for such entertainment purposes, the employer paid him an additional sum of $25 per month. That this policy was justified, if that be material here, is borne out by the fact that decedent‘s activities in pursuing it substantially increased the business of his employer. It is well known that many large corporations have adopted similar methods
of producing business and have appropriated large sums and often employed men with no other duties to perform than the entertainment of customers and prospective customers for the promotion of business. It is a well-recognized American business practice; and, if an employee while so engaged meets with accidental injury or death, such injury or death is presumed to be within the course of his employment and to arise therefrom, and, in consequence, is covered by the compensation act.”
In this case it has been established that it was employer‘s policy to promote business through the entertainment of customers; that employee had been given authority by employer both to arrange this trip for the purpose of allowing the customer to observe the manufacture of paper suitable for the manufacture of record jackets and to make reasonable expenditures for the entertainment of the customer while on the trip, and that the company was to pay all of the expenses of the trip, including the entertainment.
In Ohlsen v. J. G. Dill Co. supra, Ohlsen was performing a service of creating good will for his employer at the time that the boat in which he was a passenger capsized and he was drowned. Similarly, in the present case, employee was performing a service for his employer by creating good will for his employer, all for the purpose of making a substantial sale to the customer, when he suddenly died as a result of the accident which occurred during their dinner. Certainly in both cases the death had its origin in a hazard and risk connected with the employment.
In Stansberry v. Monitor Stove Co. 150 Minn. 1, 183 N. W. 977, 20 A. L. R. 316, a salesman was killed while trying to escape a hotel fire. The employer had given the salesman a territory mainly in North Dakota. While he was in Grand Forks, in connection with an itinerary which he had set up for calls as a salesman for the employer, the hotel in which he was staying caught fire and he was killed. This court said that the employee died from an accident which arose out of and in the course of his employment.
In Fisher v. Fisher, 226 Minn. 171, 32 N. W. (2d) 424, a salesman went to a public park where his customer was umpiring a baseball game. While waiting for the game tо be completed so that he might be able to
The record is clear in the instant case that it was employer‘s policy to allow its traveling salesmen to work their own hours, choose their own accommodations, and make their own decisions as to entertainment and eating. Employer and its insurer concede that employee was “in the course of his employment” at the time of his death, but contend that his death was not caused by an injury arising out of the employment, as required by
Relators argue that if an employee is required in the course of his employment to lift objects, he is subjected to the risks of a possible back injury or hernia. If he is required to work out of doors in winter weather, he is exposed to the risk of frostbite or freezing to death. If he is forced to perform heavy or demanding work, he is subject to the risk of a coronary occlusion. If he is required to drive from town to town, he is subject to an automobile accident. If an employee is required to work in a plant where there is a heavy concentration of silica dust, he is exposed to the risk of developing silicosis. If an employee is required by his employer to go hunting or fishing with a customer, he is exposed to the risk of being shot or drowning. Relators go on to say:
“* * * But if, because of his employment, he is requirеd to eat a well-prepared meal of fine food in a reputable restaurant, where is the risk or the hazard to which he is subjected? And if it is argued that he is subjected to a risk—that of choking—is that risk any different from the risk to which he would be subjected in the ordinary course of his life?”
However, looking at the coin from the other side, if it is true that in the course of ordinary life a person faces the risk of choking while eating, he also faces the risk of back injury or hernia while lifting, the risk of frostbite while out in the cold, the risk of coronary occlusion while performing heavy or demanding work, or the risk of an automobile accident while driving. The fact that an activity is performed both as a part of the employment and not as a part of it does nоt make injuries or death resulting from that activity noncompensable.
Workmen‘s compensation cases in this state indicate that an injury arises out of the employment if, after the event, it can be seen that the injury has its source in circumstances in which the employee‘s employment placed him. For example, in Krause v. Swartwood, 174 Minn. 147, 218 N. W. 555, 57 A. L. R. 611, an office assistant to a doctor ate her lunch near the office in order to more readily answer telephone calls for the doctor. She was injured from drinking poisoned coffee with her lunch. This court held that the injury arose out of the employment because the doctor‘s directions and her very proper acquiescence continued her employment through the noon hour and prоjected it into the restaurant where she lunched, just as the employment of a traveling salesman may be continued through the night and into the hotel where he sleeps, citing Stansberry v. Monitor Stove Co. supra.
In Kaselnak v. Fruit Dispatch, 205 Minn. 198, 285 N. W. 482, this court held that the causative danger must be incidental to the character of the business and not independent of the relationship of master and servant, but further stated, quoting from McNicol‘s Case, 215 Mass. 497, 499, 102 N. E. 697, L. R. A. 1916A, 306 (205 Minn. 201, 285 N. W. 483):
“* * * It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the
The case before us is hardly distinguishable from Krause v. Swartwood, supra, because it involves an injury due to choking rather than to food poisoning. If we follow the holding in the Krause case, had employee in this case eaten poisoned meat while entertaining Hersk at dinner, his death would be compensable. If we follow the contention of employer and its insurer, employee‘s death from choking on a piece of meat while entertaining Hersk at dinner is not compensable. But in both Krause and this case the circumstances surrounding the employees are the result of their employment; in both situations the event causing injury had its origin in circumstances created by the employer for the purpose of furthering the employer‘s business, and the death or injury flowed as a natural consequence therefrom. Whether employee may have been negligent in his manner of eating is immaterial since contributory negligence does not relieve an employer from liability under the Workmen‘s Compensation Act.
In McKenzie v. Railway Exp. Agency, Inc. 205 Minn. 231, 285 N. W. 529, an employee of the agency went into a railroad car, but not one in which he was working, for the purpose of protecting himself from the cold and was injured. The court in holding that his injury arose out of his employment, said (205 Minn. 233, 285 N. W. 530):
“* * * Acts of the employe necessary for his comfort and convenience, though strictly personal to himself, are incidental to the service, and injuries sustained while performing them are compensable.”
The Industrial Commission in its decision in this case makes the following statement:
“The leading contemporary writers, Larson,1 and Schneider,2 infer compensability for most events occurring to traveling salesmen. Schneider quotes with approval Judge Wyatt in the ‘slip and fall’ case of a salesman going to eat. Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786, 32 S. E. 2d 816 (1945):
“‘* * * the eating of meals, while a pleasure indulged in by a traveling salesman and all mankind, is as necessary to the continuance of his duties as the breath of life, and where his duties take him away from his home, his acts of ministration to himself should not—and we believe do not—take him outside the scope of his employment, so long as he performs these acts in a normal and prudent manner. Such activities, the performance of which are necessary to his health and comfort, while in a sense personal to himself, are nevertheless incidents of his employment and acts of service therein. Within the meaning of the workmen‘s compensation act, although only remotely and indirectly conducive to thе object of employment. ‘”
In this case employee was eating his meal with a customer as part of a trip designed to procure business for employer, the expenses being paid by employer under arrangements between employer and employee. This was not just an ordinary meal, but a meal ordered in an exceptionally fine restaurant, served with drinks, and was part of the plan to win the customer‘s favor and to obtain business for employer from him. While there are no cases identical with the situation here, by parity of reasoning compensation should be allowed in the instant case. Some jurisdictions have upheld compensation awards in situations which may be considered extreme—e. g., where a sаlesman got a hair brush bristle in his eye when the train he was on jolted (Lief v. A. Walzer & Son, 248 App. Div. 651, 287 N. Y. S. 991). The trend, however, seems to be to adopt the doctrine of continuation of a traveling salesman-employee status throughout an employee‘s trip wherein his acts of traveling, procuring food, and procuring shelter are all incident of the employment relationship. We think this is a case where the employment was the sole factor in exposing employee to the injury-producing act. It was clearly the reason for his being in the Chicago restaurant at that time. The question is simply whether the employment is the predominant factor in exposing an employee, in a different manner and to a greater degree than if he had been pursuing his ordinary personal affairs, to a hazard which may or may not be peculiar to or exclusively associated with the employment, and which hazard, though part of the general working environment, may be in direct consequence of an injury-
Consequently, as long as the necessity for a trip was created, as here, by employee‘s employment, such employment was a contributing cause and one leading to his death. Therefore, his death is compensable under the Minnesota act and Minnesota decisions. The record is clear that everything that employee was doing at the time of his death was intimately related to his employment. The evidence indicates that the dinner conversation included a summary of the day‘s activities at the companies visited in Chicago, as well as the discussion of the trip to the paper mill in Michigan planned for the next day. Employee was at all times doing what his employer ordered him to do, expected him to do, and knew he was doing, since it authorized the trip and was to underwrite the expenses thereof. The record indicates that employee did not deviate from his employer‘s business but rather that he was furthering the interest of his employer and his employment at the time of his death.
We said in 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 an employe from the benefits thereof unless it clearly appears that he does not come within the protection of the act.”
In the early workmen‘s compensation case of State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 179, 151 N. W. 912, 914, Mr. Justice Holt, speaking for this court, said:
“We shall not attempt to formulate a definition of the phrase, accidental injury arising out of the employment, except to say that the accident causing the injury must arise out of work or business being done for the master either by direct or implied authority. * * * The term cannot be restricted to injuries caused from anticipated risks of the service, if the law is to be of the benefit intended.”
Relators advance the cases of Bronson v. Joyner‘s Silver & Electro-
In Reardon v. City of Austin, 174 Minn. 359, 361, 219 N. W. 292, 293, Mr. Justice Dibell, in affirming an order of the Industrial Commission, said:
“The commission finds the facts. We would have found differently. We appreciate however that others might take a different view, as the members of the commission did. * * * We cannot say that the commission could not reach the conclusion it did from a fair consideration of the evidence.”
We have made it clear in former decisions that this court is not the trier of facts in workmen‘s compensation cases. Our function is to ascertain whether the findings are supported by inferences drawn from the facts, and findings so supported will not be disturbed unless they are manifestly contrary to the evidence. Thus, in Anderson v. Armour & Co. 257 Minn. 281, 287, 101 N. W. (2d) 435, 439, we stated:
“* * * [I]t is the policy of this court, in reviewing the findings of the Industrial Commission, not to determine whether on the facts the decision of the commission is correct or even preferable to another, but, rather, only to determine whether the findings have sufficient basis of inference reasonably to be drawn from the facts.”
Mr. Justice Kenison, speaking for the New Hampshire court in Newell v. Moreau, 94 N. H. 439, 446, 55 A. (2d) 476, 481, said:
“We must constantly remembеr that in this case we are construing a compensation statute. ‘Since the employer may be in no way to blame or have anything to do with the injury, the liability to compensate for it is in no usual sense tortious in character.’ Holland v. Company, 83 N. H. 482, 484. We should not insert the conception of contributory fault which the compensation statute discarded and which is not a bar under section 10. * * * We prefer a liberal construction of the statute consistent with its history and general policy rather than a strict and literal interpretation based on the tort law of master and servant.”
See, Cunning v. City of Hopkins, 258 Minn. 306, 103 N. W. (2d) 876.
It is our view that the unquestioned facts demonstrate that employee at the time of the accidental injury was traveling and engaged in pursuance of his employment and suffered a fatal injury in an activity incidental to such employment. The Industrial Commission properly found that his death arose out of and in the course of his employment.
Respondent is allowed $250 attorney‘s fees and costs in this court.
The decision of the Industrial Commission is affirmed.
ROGOSHESKE, JUSTICE (concurring specially).
I concur in the result. There is evidentiary support for an inference that the employee was exposed to a different and greater risk than if he had been pursuing his ordinary personal affairs. Here the environment of the occasion—the stress of persuading a prospective customer, to please him, and to make him more receptive—is a different circumstance than the ordinary leisurely consumption of an evening meal. The employee was discussing business at the time he choked. It was а late dinner commencing at 7:30 and the order had not yet been obtained.
KNUTSON, CHIEF JUSTICE (dissenting).
I cannot agree with this opinion. While negligence and contributory negligence are not important in determining compensability of injury or death under the Workmen‘s Compensation Act, causal relationship is.
I fail to see that there is any causal relationship between choking on a piece of steak and the employment of decedent, even though he was eating while he was on the job. A case might arise where an employee had limited time in which to eat and as a result would eat so fast that he would choke to death, but nothing of that kind appears in this case. The employee here simply took a chunk of meat that was too big and attempted to swallow it without chewing, and choked. I do not see that this had any relationship to his employment.
Nor do I agree with the concurring opinion. There is no evidence in this case that deceased was eating under any stress of persuading a prospective customer or trying to make him more receptive. He was simply eating his dinner. The same thing could have happened to him while eating at home.
OTIS, JUSTICE (dissenting).
I cannot agree that every injury whiсh occurs “in the course of employment” necessarily “arises out of” such employment, as the foregoing opinion appears to hold.
The syllabus states:
“Where an employee is specifically instructed and encouraged to entertain customers and prospective customers as a means of developing good will and increasing the business of his employer, accidents sustained while in the course of such activities are within and covered by the Workmen‘s Compensation Act.” (Italics supplied.)
The opinion further holds:
“Consequently, as long as the necessity for a trip was created, as here,
It concludes with the following rule:
“It is our view that the unquestioned facts demonstrate that employee at the time of the accidental injury was traveling and engaged in pursuance of his employment and suffered a fatal injury in an activity incidental to such employment. The Industrial Commission properly found that his death arose out of and in the course of his employment.” (Italics supplied.)
As I construe the opinion, we have now read out of
The purpose of the compensation act is to recognize and rectify illness and accidents which result from an unusual exposure to occupational hazards not encountered to the same extent by persons not so employed. It is not intended to insure an employee against injuries resulting from risks which are neither created nor aggravated by his occupational activities.
In every case cited by the foregoing opinion, the Industrial Commission, and the employee, the injury or death resulted from a hazard which was caused or greatly increasеd because of the employee‘s work-related duties.
In Stansberry v. Monitor Stove Co. 150 Minn. 1, 183 N. W. 977, 20 A. L. R. 316, the employee was killed in a hotel fire, a risk not of his own making and one to which he would not have been exposed except for his work. In Kaletha v. Hall Merc. Co. 157 Minn. 290, 196 N. W.
It has heretofore been the law that an injury incurred by an employee will be compensated only “if the employment, as a part of the working environment, peculiarly exposes the employee to an external hazard whereby he is subjected to a different and a greater risk than if he had been pursuing his ordinary personal affairs. In other words, if the injury has its origin with a hazard or risk connected with the employment, and flows therefrom as a natural incident of the exposure occasioned by the nature of the work, it arises out of the employment.” Nelson v. City of St. Paul, 249 Minn. 53, 56, 81 N. W. (2d) 272, 275.
In my opinion choking on a piece of meat because it is cut too large and swallowed too fast is not the result of a “peculiar exposure” to an “external hazard” which subjects an employee to a different or greater risk than he experiences wherever or whenever he is engaged in the process of eating a meal. I would therefore reverse.
PETERSON, JUSTICE (dissenting).
I join the Chief Justice and Mr. Justice Otis in their dissenting opinions, to which I would append an additional observation.
It would seem that the Industrial Commission was influenced more by a feeling that the result was dictated by two prior decisions of this court than by its own judgment as to the rightness of the result. Commissioner James Pomush, writing the main opinion, relied almost exclusively upon this court‘s decisions in Kaletha v. Hall Merc. Co. 157 Minn. 290, 196 N. W. 261, and Krause v. Swartwood, 174 Minn. 147,
It is my view that neither Kaletha nor Krause control decision in this case. Although the cases have some similarity, they are not the same. Commissioner Pomush recognizes that “[t]here certainly is some difference” between this case and those, and the majority, although writing that Krause is “hardly distinguishable,” does acknowledge that there are no other cases which are “identical.” Kaletha is so distinguishable on its facts as hardly to require comment,3 and it is noted that the employee himself does not cite it as a controlling case.4
The Krause case, too, can be reconciled on its own facts, admitted in that decision to be unusual. Although Commissioner Pomush wrote that “the stating of the difference in a legal differentiating theory is not easily done,” it is important to do so. If we do not do so, we either write out of the statute the essential factor that an accident must “arise out of” the employment or we set traveling salesmen apart for vastly more favorable treatment than is accorded other employees. This manifestly was not the legislature‘s intent. In this case the employee, while taking his food and drink at a restaurant of his choice, exposed himself to no unusual hazard and suffered an injury which, in the words of Commis-