Summary
In Outland v. Indus. Comm. (1940), 136 Ohio St. 488, 493, 17 O.O. 92, 94, 26 N.E.2d 760, 762, the court explained that "[d]ecedent [an automobile salesman] was not a pieceworker plying his trade in a particular place."
Summary of this case from Ruckman v. Cubby Drilling, Inc.Opinion
No. 27738
Decided April 10, 1940.
Evidence — Res gestae — Declaration by departing person as to destination — Workmen's compensation — Death in course of and arising out of employment — Salesman entering home to secure garage keys and prospect book.
1. The declaration of a person as to where he is going made by him at the time of departing is admissible as a part of the res gestae in explanation of his act of leaving. (Paragraph 2 of the syllabus in Railway Co. v. Herrick, 49 Ohio St. 25, approved and followed.)
2. An automobile salesman, who, while making a trip on behalf of his employer to solicit a prospective customer, goes to his own home to get garage keys and a prospect book necessary to him in the performance of duties incidental to the trip and is killed by falling accidentally as he enters his dwelling place, suffers death in the course of and arising out of his employment and his dependents are entitled to death benefits under the Workmen's Compensation Act.
APPEAL from the Court of Appeals of Logan county.
The plaintiff, Ethel Outland, filed with the Industrial Commission of Ohio, an application under the Workmen's Compensation Act for benefits arising from the death of her husband, Omar Outland.
The application was denied by the commission and a petition on appeal was filed in the Court of Common Pleas of Logan county, Ohio.
On trial in that court evidence adduced by the plaintiff tended to show the following facts:
Plaintiff's husband was employed by the H.G. Short Company, Ford dealers at Bellefontaine, Ohio, to solicit orders for and sell automobiles in territory consisting of Bellefontaine and the surrounding part of Logan county. His employer supplied him with keys to the company garage and a prospect book containing the names and addresses of prospective purchasers of automobiles and other papers all of which were necessary in his employment. In his daily routine he began work in the morning about eight and frequently worked until ten in the evening and after. At noon on December 24, 1934, he went to lunch at his apartment on the second floor of a building across the street from his employer's garage, and upon changing his clothes there, left the keys to the garage, his prospect book and his papers on the dresser in his bedroom.
About three-thirty in the afternoon of the same day he left the garage. Thereupon he met Ethel Outland, his wife, and Mary Young, her daughter by a former marriage, on the street in an automobile and stated to them that he was on his way to see a prospect, that he was going to stop at home to get his garage keys and prospect book and that he did not know when he would return. Thereupon he started to cross the street to his home and a few minutes later the stepdaughter, on her return home, found his dead body at the foot of the stairs leading up to the living quarters on the second floor.
The county coroner of Logan county, who had been a practicing physician for many years, was called to the scene immediately. He testified that Outland was lying on his face, his head on the lower landing, and feet and lower limbs on the first and second steps. He further stated that there was blood on the face, neck and shoulders of the deceased, contusion about the face, black and blue spots on the head and bleeding from the ear as though he had a fractured skull. In addition the deceased had a broken neck, which, in the opinion of the coroner, caused death almost instantaneously.
After his decease, his garage keys, prospect book and other papers were found on the dresser where he left them when he changed his clothes.
Evidence was also adduced which tended to show that the deceased went to the apartment to deliver some Christmas presents including one for his wife; in fact, three Christmas packages were discovered by her at the top of the stairs after her husband's death and no packages were there when she and her daughter left about three-thirty in the afternoon — just before they met him on the street.
The trial resulted in verdict and judgment in favor of the plaintiff permitting her to participate in the State Insurance Fund. Thereafter an appeal was taken to the Court of Appeals which reversed the judgment of the trial court and entered final judgment for the defendant, one judge dissenting.
This court allowed a motion to certify the record.
Other facts are stated in the opinion.
Mr. C.W. Schwemer, Mr. E.B. Wetherill and Mr. J.J. McGee, for appellant.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for appellee.
The plaintiff maintains that the Court of Appeals committed prejudicial error in rendering final judgment for the defendant. The defendant, on the contrary, contends that the final judgment was justified for two reasons: (1) There was no competent evidence that Omar Outland, the deceased employee, was killed accidentally as he was entering the building in which he lived for the purpose of getting his garage keys and prospect book in the course of a trip on behalf of the employer for the purpose of soliciting a prospective buyer, and (2) even if there was such evidence the trip home constituted a departure from the course of employment.
These two contentions of defendant raise the vital questions on which the case turns and will be considered in order.
The first inquiry, then, is the competency and probative value of the evidence favorable to the plaintiff.
Proof of decedent's purpose in going to his apartment is in the main dependent upon the statements to his wife and stepdaughter to the effect that he was going home to get his garage keys and prospect book and was on his way to see a prospect This conversation was competent and admissible under the rule laid down in Railway Co. v. Herrick, 49 Ohio St. 25, 29 N.E. 1052. The theory is that when a person in departing from a given place makes a statement as to where he is going, such a declaration insofar as it relates to the nature of his journey and his place of destination, is admissible as part of the res gestae in explanation of his act of leaving.
Even so, proof, it it asserted, is still lacking. Counsel for defendant point out arguendo that deceased did not need either his garage keys or prospect book because the garage was not locked and the prospect he was going to see was known to him without the book, that decedent had previously been to and had returned from his apartment and did not then obtain the garage keys or prospect book although he did get the keys to a certain car, which were then taken by him to a fellow employee, that it is not shown what caused decedent's accident, or how he fell, and that he was leaving the apartment building at the time.
Manifestly these deductions of defendant's counsel are based on evidential inferences favorable to the defense; but there is evidence which warrants opposite inferences — inferences affording recovery by plaintiff. The keys, perhaps, were needed because the garage might be locked upon the employee's return although open at the time he left and the book needed to disclose the names of other prospects who might live in the same neighborhood as the one he intended to visit immediately. A failure to get the articles on a previous visit might indicate either forgetfulness or a belief that they would not be needed for work during the rest of the day. After all, when and how the accident actually happened may be proved by circumstantial evidence. What is more, since there was no eyewitness, circumstantial proof was all that was available to show the immediate facts surrounding decedent's death.
What we have then is a conflict of inferences arising from the evidence. In determining whether a final judgment should be entered for the defendant as a matter of law notwithstanding a verdict and judgment for plaintiff in the trial court, the reviewing court considers only the evidence favorable to plaintiff. Whether the deceased employee went to his home to get the garage keys and prospect book or for other purposes purely personal to himself could only be determined as a question of fact which requires weighing the evidence. It is clear that there was circumstantial evidence favorable to plaintiff from which the jury, if it saw fit, could properly and reasonably infer that decedent was killed accidentally while entering the apartment building where he lived to get the articles needed in the course of a trip he was making to see a prospective customer.
The second inquiry relates to the question of departure.
Defendant's counsel urge that if all the evidence favorable to plaintiff be conceded to be true, still plaintiff cannot recover as a matter of law because the decedent in going to his home to get the garage keys and prospect book departed from or stepped out of the course of his employment. Counsel in this behalf argue that decedent was like a pieceworker in a factory who forgets his tools and goes home after them on his own time, and that at the time he met his death, he was out of the zone of his employment. Then, too, there is the suggestion that he was in exactly the same relation to his employer as if he had been going to his home from his employer's place of business for a meal or for the night. These contentions leave vital elements out of consideration. Decedent was not a pieceworker plying his trade in a particular place. His work took him upon roads, streets and sidewalks and into houses and other buildings and subjected him to road risks and the hazards of travel by conveyance and on foot. When he left to see or seek a prospect he was, while on his way, in the zone of his employment. Such an employee, who on a trip for his employer goes into a building to see a prospect or get something needed in the work then being done in the employer's behalf, is in the course of his employment and the legal import of his relation is not altered because the building happens to be his own home.
If the deceased employee, needing his garage keys and prospect book, went to his home to get them in the course of his journey to see a prospect and sustained an injury from the risk or hazard of travel in entering his home, such injury was sustained in the course of and arose out of his employment and would be compensable; on the other hand if he went to his home to leave Christmas presents there or for other purposes of his own, the injury would not be compensable. On the question of departure there was merely an issue of fact for the determination of the jury under proper instructions of the court.
Since there was evidence which required the cause to be submitted to a jury the Court of Appeals erred in reversing the judgment of the Court of Common Pleas and entering final judment for the defendant as a matter of law. The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
DAY, MYERS, and HART, JJ., concur.
We are constrained to dissent, because the decision in the instant case is a departure from the principles heretofore recognized and expressed by this court. Particular reference is made to the cases of Industrial Commission v. Gintert, 128 Ohio St. 129, 190 N.E. 400, 92 A. L. R., 1032; Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., 130 Ohio St. 175, 198 N.E. 276; Ashbrook v. Industrial Commission, Ante, 115, 24 N.E.2d 33.
The purpose of the Ohio Workmen's Compensation Act in its existing form is to compensate for accidental injuries or death occurring to a workman by reason of risks encountered in the activities, conditions or environments of the work he is employed to do.
The present case falls plainly within the rule that when an injury cannot fairly be traced to the employment as a substantial contributing cause, but comes from a hazard to which the workman would have been equally exposed apart from the employment, there is no right to a compensation award. If Outland's death resulted from an accidental fall, it happened at his home, under circumstances clearly indicating he was on a mission entirely his own and in no way connected with the duties of his employment.
WEYGANDT, C.J., and MATTHIAS, J., concur in the foregoing dissenting opinion.