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Custer v. Hartford Insurance Co.8/23/2005
he words of the majority opinion) to other portions of the metropolitan area to call on customers and agents. There is no dispute that Mr. Custer had an office at his employer's local headquarters and that he regularly spent a substantial amount of his work time, if not the majority of his work time, at that office. There is also no dispute that he was not in the process of returning to the office for some employment purpose at the time of the accident. There is also no dispute that this event was in the metropolitan area, not in another community.
Once the golf event was over, Mr. Custer was on his own time. He could go home or wherever he wished to go. He was in the metropolitan area. His employer had no say over where he resided, where he would go following the golf event, or what route he would take to get wherever he was going. He was no longer, under any normal or ordinary understanding of the phrase, "in the course of his employment" at the time of his injury. Nor, in the words of section 287.020.5, RSMo 2000, was he "engaged in or about the premises where duties [were] being performed, or where services require presence as a part of such service."
In this case, there is no doubt about the plain and ordinary meaning of the phrase "course of employment." There is also no doubt about the material facts, which the parties agree upon. While some cases are extremely difficult to resolve, this one is not, once one gets past the erroneous notion that the case must be governed by decisions discussing the "coming and going rule" and its exceptions.
Contrary to what the majority implies, the Missouri Supreme Court has never suggested that we should routinely jettison analysis based on the plain meaning of the statutory terms and base our analysis on the going and coming rule and its exceptions. Moreover, although the ruling that I suggest in this case may seem contrary to a few intermediate appellate decisions, it is not precluded by any decision of the Missouri Supreme Court.
One decision of the Missouri Supreme Court relied upon significantly by the majority is Brown v. Weber Implement & Auto Company, 206 S.W.2d 350, 351 (Mo 1947). That case involved a salesman who had made a sales call at a yacht club, then stayed at the yacht club with his wife and some friends for several hours, then was injured on the way home. The Court's affirmance in that case noted that the evidence was such that it also could have supported an award for the employer. That decision, which was based in part on the conflict in the testimony, was prior to the Supreme Court's decision in Hampton v. Big Boy Steel Erection, supra, which specified a different standard of reviewing the facts. It was also prior to the 1993 amendments. Finally, it involved an employee involved in outside sales rather than an employee who spends part of his time in social contacts with customers and agents. An outside sales person is ordinarily in the course of his or her employment whenever driving during the work day. Thus, in my view, it is distinguishable and does not dictate an award for the claimant in this case.
The fact that the claimant drove a company car, like the fact that golf ordinarily is recreational, is immaterial in this case. The car was freely available to the claimant for personal as well as business purposes. The employer did not restrict the use of the vehicle in any way. The record does not show that when the claimant drove the vehicle for personal use, there was any benefit to the employer such as would be provided from advertising written on the side of the car. See Otte v. Langley's Lawn Care, Inc ., 66 S.W.3d 64, 67 (Mo. App. 2001). Also, this is not like the case of a car
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