Automobile Club Inter-Insurance Exchange v. Bevel

BLACKMAR, Judge,

concurring in result.

The insurance policy in issue is the reciprocal of workers’ compensation, for the simple reason that the employer would not want to provide an employee with both compensation benefits and responsive insurance coverage. As the per curiam notes, decisions in insurance cases of this kind are precedents in compensation cases. I believe that the per curiam goes to unnecessary lengths in reviewing the factual findings of the trial court, that in so doing it departs from the standards of Murphy v. Carron, 586 S.W.2d 30 (Mo.banc 1976), and that it may spawn confusion in the law of workers’ compensation. Problems in the Court of Appeals opinion were instrumental in our decision to grant transfer. I cannot join in a disposition which perpetuates these problems.

The case can be decided, however, without detailed explanation of the business and non-business aspects of the visitations to Murphy’s garage or First National Drink. Problems of mixing business and pleasure often arise under workers’ compensation law, and involve factual determinations. I am not prepared to say that questions as to whether a delay in returning from one hour to two constituted a deviation from the course of employment, whether a visit to another customer or supplier was authorized, and what the significance of picking up the check is, should be ruled as matters of law, as the per curiam seems to do. The factual conclusions expressed in the per cu-riam appear to be at odds with the liberal construction of the workers’ compensation law most recently mandated by Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983).

It seems clear from the record, however, that the luncheon trip was a purely personal mission. There is no indication that Bevel and Oberreither could not have dined wherever they chose, together or separately, or that a luncheon trip at some distance from the office had any relation to their employment. Inasmuch as business did not take Bevel away from the office, it is appropriate to hold that Oberreither’s undertaking to drive him home likewise was not work related, and that the injury to Bevel did not arise out of or in the course of employment. We do not need to consider anything except the luncheon trip and the trip to Bevel’s home following the session at First National Drink. The cases of Beckwith v. Standard Oil Co., 281 S.W.2d 852 (Mo.1955); Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625 (Mo.1969); and Garrett v. Industrial Commission, 600 S.W.2d 516 (Mo.App.1980) are in line with the views I express.

I would reject the respondent’s plea for a rule of automatic workers’ compensation coverage if an employee is operating or riding in a “company car” at the time of his injury.

I agree that the circuit court erred in denying coverage and join in the reversal.