Claimant has also contended that merely by virtue of being out of his hometown on the date of the injury, that the decedent's death should be covered by Workers' Compensation. This is insufficient to prove that a compensable accident occurred. The claimant bears the burden of proving all material elements of the claim to a reasonable probability. See White v. Henderson Implement Co., 879 S.W.2d 575 (Mo.App. W.D. 1994); Beyer v. Howard Construction Co., 736 S.W.2d 78 (Mo.App. S.D. 1987). Therefore, she must prove that an accident arose out of and in the course and scope of employment. Clayton v. Langco Tool \& Plastics, Inc., 221 S.W.3d 490, (Mo.App. S.D. 2007). Claimant's argument that the accident necessarily arises out of and in the course of employment merely by virtue of traveling on behalf of his employer was resolved in Tanner v. Crest Foam Corp., 2004 WL 306087 (Mo.App. S.D.). Gregory Tanner was a territory sales manager for employer. His job was to sell carpet pad to retailers within an assigned sales territory. Tanner's sales territory consisted of eastern Missouri north of Cape Girardeau and southern Illinois. Most of employee's customers were in St. Louis. His primary duty was developing the market for employer's product in the St. Louis area. He had been requested to move to St. Louis in early 1997. He and his family were planning to make that move. On the morning of December 2, 1996, employee made telephone calls from his residence in Jackson, Missouri. He left his residence at approximately 9:30 a.m. He told his wife he was going to the Fredericktown and Farmington area to make calls. He was dressed in a dress shirt, coat, and tie when he left the residence.
At approximately 1:30 p.m., employee was killed in a one-vehicle accident on ZZ Highway near Glen Allen, Missouri. A passenger in his vehicle, was also killed in the accident. Toxicology reports revealed that at the time of employee's death, his blood alcohol content was 0.162 percent, more than twice the current legal limit for operating a motor vehicle, and the passenger's blood alcohol content was 0.333 percent. As the Court pointed out, "The offense of driving with excessive blood alcohol content occurs when a person operates a vehicle with 0.08 percent alcohol in his or her blood. § 577.012.1, RSMo 2000." Id.
The commission's final award allowed compensation and stated:
Employee set his own hours, his vehicle was his office, and he was required to make at least eight customer calls a day.
It is not unreasonable that he had and was in the process of making calls within his sales territory on December 2, 1996,
when he was killed in an automobile accident. While it is true that employee and his passenger, Mr. Mims, consumed
alcohol prior to the accident, it does not negate the fact that employee was traveling in his sales territory at the time of his
death.
The Commission agrees that a traveling salesman's mere presence in his sales area, when the accident or injury
occurs,
does not, in itself, entail that the employee was working in the course and scope of his employment.
The Court of Appeals then pointed out that the Commission's award then stated there were other "objective indicia" pointing to the fact that employee was within the course and scope of his employment. The "objective indicia" the commission relied on included that employee was required to make at least eight customer calls a day; that employee indicated to his spouse when he left home the morning of the accident that he was going to call on customers; that there was "sufficient evidence ellipses to conclude that employee had called on at least one customer in Bollinger County" before the accident; and employee left his home dressed in a white shirt and tie. The Commission's award states, "When these facts are combined, they lead the Commission to conclude that employee left work [sic] that day to call on customers. Employee had not deviated from the area where employer permitted him to call on currentand potential clients."
The employer in Tanner contended that employee failed to prove this his death arose out of and in the course of his employment. Specifically, employer and insurer contended "the time, location and circumstances of the accident establish[ed] that no purpose of the employer was being served, and no benefit to the employer was being conferred, when [employee], while intoxicated, drove his personal automobile off of Highway ZZ and was killed."
After a review of the evidence, the Court of Appeals held that the Commission's award was clearly contrary to the overwhelming weight of the evidence. The Court found that while there was evidence that employee indicated he was going to the Fredericktown/Farmington area to call on customers, and that one could get to that area from the location where the accident occurred, the evidence adduced disclosed that was not the customary and usual route employee would have expected to follow to get to that area. The Court of Appeals held:
The overwhelming weight of the evidence received by the commission requires the conclusion that although the accident
in this case occurred in employee's sales territory, it occurred during an alcohol-related social dalliance by employee
with Mr. Mims; that at the time of the accident, employee was engaging in pleasure purely his own. There was not
sufficient competent evidence in the record to warrant the making of the award. Employer and insurer incurred no liability
under The Workers' Compensation Law.
The facts in the present case, while similar to those in Tanner, are even stronger in establishing that Travis Anderson was killed "during an alcohol-related social dalliance ... [and] was engaging in pleasure purely his own." In Tanner:
The employer did not establish set hours for employee
The employer did not set a work schedule for him.
Employee was expected to make eight "calls" per day
Employee used his personal vehicle to call on customers.
Employee carried carpet pad samples, his brief case, a cell phone, and paper work in his vehicle at all times, even when he used the vehicle for non-work-related purposes.
In the present case, we have the following facts:
The employer had established hours of surveillance -6 am until 2 pm , and the accident occurred at 12:19 a.m. The employer did set a specific work schedule unless special permission was obtained to extend those hours (and no evidence was presented that the decedent had that permission)
When Anderson was working, he carried with him in his car
Dell laptop computer;
Metal clip board;
Sony handy camcorder;
Tapes for camcorder;
Nokia cell phone;
Charger for cell phone;
Earpiece for cell phone.
He had none of these items with him at the time of his accident.
Despite the fact that Tanner was in his territory, in the car he used to call on customers, which car was contained his carpet pad samples, his brief case, a cell phone, and paper work, the Court of Appeals found that claimant was not in the course and scope of his employment at the time of his death.
At the time of Anderson's death he had the following aggravating factors which support that he was not acting on behalf of his employer:
His BAC was higher than Tanner's - 0.221 v. 0.162 had a higher (Dr. Vasiliades testified that Anderson had 11 drinks
in his system at the time of his death. Anderson had none of the tools of his trade with him v. Tanner who had all of the
tools of his trade with him. Anderson was out a full 10 hours after he should have called off surveillance for the day
VRC has a company policy against the consumption of alcohol while on the job; Dale Alexander, who took over surveillance of Anderson's subject, testified that there was never a request to engage in extra hours surveillance.
No affirmative evidence has been presented that the decedent was working at the time of the accident nor is there evidence that he was on his way to get something to eat merely because restaurants were in the vicinity of the accident site. Further, even assuming that the decedent was on his way to get something to eat, this assumption does nothing to demonstrate that he was in the course and scope of his employment or that the activity of dining was remotely temporally related to the afternoon's work activities. Perhaps the decedent was on his way to get something to eat because he was intoxicated, having consumed a minimum of eleven drinks prior to the accident. Perhaps he was on his way to a tavern. He could have had any number of non-work-related purposes for traveling in early morning hours. But pure speculation and conjecture is required to conclude that he was engaging in work on behalf of his employer. There is no evidence, as suggested by claimant, that Anderson was on his way to get something to eat when he was involved in his fatal one car auto accident. To the contrary, the overwhelming weight of the evidence shows that he was not engaged in work for his employer: he had none of the tools of the trade in his car that are required when conducting surveillance, having left those in his hotel room; employees are limited to conducting surveillance work only until 2:00 p.m. absent the receipt of special permission of which there is no evidence; the accident occurred 10 hours later after his normal quitting time.; there was no evidence that he had been authorized or requested to work past normal working hours; and, there is undisputed evidence that Anderson was highly intoxicated at the time of the accident. In short, all evidence adduced supports the position of the employer that Anderson did not sustain injury arising out of and in the course of his employment.
The claimant has argued that the decedent was required to have the cell phone on at all times and that this supports a finding of a compensable accident. However, the cell phone was not in Anderson's possession at the time of his fatal accident. The Blue Springs Police Department found the cell phone, the charger and the cell phone's earpiece back in his hotel room, which further demonstrates that he was not engaged in any employment-related activity at the time of the accident. Claimant has also attempted to argue that the employer did not show that the decedent was NOT authorized to work late. By so arguing, claimant has inappropriately placed the burden on the employer to prove the negative when claimant has yet to make a prima facie showing that the decedent was in the course and scope of employment.
As discussed above, the claimant has the burden of proving all elements of the claim and she has failed to do so. The scant circumstantial evidence that the claimant relies upon to support her argument is insufficient to demonstrate that the accident arose out of and in the course and scope of employment. There is simply no evidence that the decedent
was engaged in any work activity or was even contemplating such at the time of the accident. In short, all of the evidence adduced supports the position of the employer that Anderson was not acting in the course and scope of his employment at the time of his death. Conversely, claimant has produced no evidence to suggest that Anderson was acting on behalf of his employer, other than the mere fact that Anderson was on assignment away from his home. The claimant therefore has failed to meet her burden of proof.