Jay Downing v. Mud Brothers, Inc.

the employer and employee, even if it is the slightest benefit." Stockman v. J.C. Industries, 854 S.W.2d 24, 27 (Mo. App. 1993). However, the benefit cannot be "so nebulous as to be non-existent." Palmer v. H.E. Miller Oldsmobile, Inc., 731 S.W.2d 389, 393 (Mo. App. 1987). "The 'concurrent benefit' principle cannot be applied without limitation. Eventually, the indirect benefit to the employer becomes so tenuous as to be imperceptible." Blatter v. Missouri Dept. of Social Services, 655 S.W.2d 819, 824 (Mo. App. 1983).

The facts before us are similar to those presented in the Stockman, 854 S.W.2d 24 case. Mr. Stockman worked for a construction employer and drove his personal vehicle to and from his home to the work sites. He and other employees carpooled from Jefferson City, Missouri to the job site in Lake of the Ozarks State Park. The employer did not reimburse its employees for gas. Mr. Stockman used his personal vehicle on occasion to obtain supplies or transport items for testing in Jefferson City. The accident occurred in October 1989, when Mr. Stockman was driving home with other employees in his vehicle. The accident occurred within the state park, but approximately five miles from the work site. Mr. Stockman did not perform any errands with his personal vehicle for employer on the date of the accident. He did have a saw in his vehicle, but the saw was placed in his vehicle by accident or because the supply trailer was "down a ways." Id. at 25. The court found that transporting the saw did not confer a mutual benefit on the employer because employer did not know that Mr. Stockman was transporting the saw and placing the saw in his personal vehicle was for Mr. Stockman's convenience. The employer provided a place to store the tools; thus, the employer did not benefit from Mr. Stockman transporting the saw.

Similarly, here, employer received no benefit from employee driving employer's vehicle to a gas station to get air to fill up the tire on his personal vehicle. Employee had not used his personal vehicle that day to transport tools to the job site and was not going to be using his personal vehicle the following day to transport tools. Employer had a place to store the tools. Employee transported them in his personal vehicle for his own convenience. Employer had no knowledge that employee was using employer's vehicle to drive to the gas station to put air in Mr. Lenshyn's personal air compressor, which was not used for work purposes.

We also find the case of Palmer, 731 S.W.2d 389 instructive. In that case, Mr. Palmer's personal vehicle broke down and he parked it on a street behind the employer's business. After it had been parked there for several days, the service manager and the general sales manager asked Mr. Palmer to move the car because it was an eyesore and a hazard. Mr. Palmer was injured while his vehicle was being repaired so that he could move it. He was not being paid by employer while he was working on his car. The court denied benefits because the injury did not arise out of and in the course of his employment. The court stated that although employer had asked him to move the car and expected him to do so, there was no order to do so. He was off the clock at the time of the injury. The court affirmed the finding of the Commission that any alleged benefit to employer by the removal of Mr. Palmer's vehicle was "so nebulous as to be nonexistent." Id. at 393. "The removal eliminated an eyesore from the area yet there was no evidence the unsightly nature of the car was attributable to [employer]." Id.

Employee, here, was also not being paid to drive to the gas station to put air in the air compressor. Employee was also not instructed to fix his personal vehicle by employer. If an injury which occurs while performing an act that was requested by an employer does not confer a benefit to the employer, then the facts of this case are even further removed from the mutual benefit doctrine. Employee's trip to the gas station was for the purpose of fixing his personal vehicle unbeknownst to employer. Employee's only thought was to fix his personal vehicle. When he went to the gas station to accomplish this task; i.e., putting air in his tire, it was entirely a personal errand. The employer did not receive any benefit.

Employee also argues that his injury is compensable under the dual purpose doctrine.

"Under the 'dual purpose' doctrine, injuries sustained by an employee during a trip to or from work are compensable where the primary purpose of the trip was in furtherance of the employer's business even though at the same time the employee was serving some purpose of his or her own." Williams v. Transpo International, Inc., 752 S.W.2d 501, 505 (Mo. App.1988).

It is fundamental that for an accident to be compensable under the dual-purpose doctrine, an employee must be acting not only for his own purpose but for the purpose of his employer when the accident occurs. The doctrine does not apply when an employee deviates from employer's business so that at the time of the accident he is serving only his own purpose.

Parsons v. Kay's Home Cooking, Inc., 830 S.W.2d 46, 48 (Mo. App. 1992).

In Parsons, benefits were denied under the dual purpose doctrine. Ms. Parsons left the employer's business to go to the bank to convert some money into change to operate the business. She also went to her physician's office to pick up a personal medical kit. Her doctor's office was west of the employer's business. The bank was located one mile east of the employer's business. Ms. Parsons drove to her physician's office before going to the bank. She was on her way to the bank but still west of the employer's business when she was involved in an accident.

The court further stated:

"Where at the time of an accident the servant or agent deviates or departs from the usual or most direct route which he would ordinarily follow in using the car on the owner's business, and goes off on some errand or for some purpose wholly his own, the owner is not liable for injuries inflicted by the servant or agent. But if at [the] time of accident the servant or agent has resumed the owner's business and has returned to the point of departure or to a point where in the performance of his duties he is required to be, and actually returns to his master's business, the owner may be liable." Manchester Ins. \& Indemnity Co. v. Ring, 589 S.W.2d 350, 355-356 (Mo. App.1979).

Parsons, 830 S.W.2d at 49.

The court determined that Ms. Parsons had deviated from the route to the bank for a personal purpose and was still on the route she had taken for her personal purpose. She had not returned to the route she would have taken from the employer's business to go to the bank. She would not have been in the place of the accident had she not taken the trip for her personal errand.

Similarly, here, employee's purpose in going to the gas station was for a personal errand. Although he was waiting to turn into employer's business, he would not have been in that location at the time of the accident absent his personal errand to get air for his truck tire. Employee had not returned to employer's business when the accident occurred. The fact that employee was driving employer's vehicle at the time of the accident does make this claim fall under the dual purpose doctrine. Employer did not authorize employee's use of the flatbed truck for his personal errand. The dual purpose doctrine does not aid him.

Employee's final argument is the "own-conveyance exception" renders this claim compensable. We disagree.

In McClain v. The Welsh Co., 748 S.W.2d 720 (Mo. App. 1988), the court examined this exception. In that case, Mr. McClain used his personal vehicle to run errands for the employer. The employer reimbursed Mr. McClain for his expenses, paid him overtime, and paid one-half of Mr. McClain's vehicle insurance. Mr. McClain was on his way to work one morning and was involved in an accident. He argued that the use of his personal vehicle in employer's business had become a custom constituting an implied contract. Quoting from Professor Larsen, the court stated:

"The theory behind this rule is in part related to that of the employer-conveyance cases; the obligations of t