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APPEAL No. C-950904
November 27, 1996 Decided
Hermanies Major Castelli & Goodman Mark A. Ferestad Esq. No. 0059836 and Andrew J. Wilhelms Esq. No. 0065795 740 Cincinnati Club Building 30 Garfield Place Cincinnati Ohio 45202 for Appellee
Lindhorst & Dreidame and James C. Frooman Esq. No. 0046553 312 Walnut Street Suite 2300 Cincinnati Ohio 45202 for Appellant.
DOAN P.J. PAINTER and SHANNON JJ. Court Raymond E. Shannon Retired from Court of Appeals First Appellate District sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
The Hon. Justice Per Curiam

Appellant Thomas Sysco Food Services appeals a decision of the Hamilton County Court of Common Pleas awarding workers' compensation benefits to appellee Glenn Rankin. We affirm the trial court's decision.

Rankin was employed at Sysco as a salesman when he was injured in an automobile accident on August 12 1993. He filed an application for benefits with the Bureau of Workers' Compensation. The claim was alternately allowed and disallowed at various levels of the hearing process. Finally the claim was allowed by a Staff Hearing Officer for the Ohio Industrial Commission. Sysco filed an appeal of that order with the common pleas court arguing that Rankin's injury was not received in the course of and arising out of his employment.

The common pleas overruled both parties' motions for summary judgment and the matter was tried to Court de novo. See R.C. 4123.512;.Listerman v. Providence Hosp. (Mar. 13 1996) Hamilton App. No. C-950540 unreported. Evidence presented at the hearing showed that as a traveling salesman Rankin did not have an office or desk but only a mail slot at Sysco's main office on Evendale Drive. The company provided him with voice mail which he could access from any phone. It did not require him to report to its office on a daily basis. Rankin's supervisor did not want him in the office but "out in front of a customer" selling. Rankin went to the Evendale office an average of one to three times per week to retrieve his mail.

Rankin normally left his home in the morning and went straight to his first sales call. He drove his own car. The company did not pay his automobile expenses so Rankin deducted his automobile expenses on his tax return. The company gave him an area of responsibility and though his supervisor did provide some guidance Rankin was responsible to find his own customers and set up his own sales calls.

Rankin had a small personal office in his home. After completing his sales calls for the day he would work in his home office in the evenings checking his voice mail making business calls transmitting orders by computer and generally preparing for the next day's activities. Rankin's supervisor claimed he was not aware that Rankin maintained a home office. He stated that the company would not object to a home office but that an office was not necessary to the job. The company provided its salespeople with a "traveling file" which they kept in their cars and used to keep track of their customers. It also provided them with some tables and a pay phone they could use at Sysco's office but little else since they did not need anything more.

At his home office Rankin would receive a few calls from customers approximately one per month. His business card had Thomas Sysco's address and phone number on it not his address or phone number for his personal office. He admitted that any company mail he received at home was from Sysco's corporate office in Houston and not from the local office.

On the day of his accident Rankin had stopped at Sysco's offices to pick up some products to deliver to a customer. At approximately 5:50 p.m. he left that customer's place of business about one mile from Sysco's office with the intention of returning to his home office to complete his work for the day and prepare for the next day. On route he was struck from behind by another car and suffered injuries.

Rankin called his supervisor the next day to tell him that he had been in an accident and that he needed someone to cover for him because he "had no wheels." His supervisor asked if the accident was work-related and Rankin replied that it was not. Rankin did not submit to a drug test or provide the company with an accident report as required by company policy. He submitted his medical expenses to the company's health insurer. Upon advice of Counsel Ranking filed a workers' compensation claim several months later. The company did not have any indication that the accident was work-related until it learned of that claim.

The trial court overruled Sysco's motion for a directed verdict. After hearing all the evidence Court concluded that the Rankin's injuries were received in the course of and arose out of his employment. Therefore Rankin was entitled to participate in the workers' compensation fund. Sysco filed a timely appeal from that decision with this court.

Sysco presents two assignments of error for review. In its first assignment of error it states that the trial court erred in failing to grant its motions for summary judgment and for a directed verdict. It argues that Rankin's injury occurred while he was commuting from his last sales call to his personal residence and did not arise out of and in the course of his employment. In its second assignment of error it states that the trial court's decision is against the manifest weight of the evidence. We find these assignments of error are not well taken.

An injury sustained by an employee is compensable under the Workers' Compensation Act only if it is "received in the course of and arising out of the injured employee's employment." R.C. 4123.01(C); Bralley v. Daughert (1980) 61 Ohio St.2d 302 303 401 N.E.2d 448 449. The employee bears the burden to prove both prongs of this two-prong test. Fisher v. Mayfield (1990) 49 Ohio St.3d 275 277-78 551 N.E.2d 1271 1273-74; Lord v. Daugherty (1981) 66 Ohio St.2d 441 443 423 N.E.2d 96 97-98. Nevertheless each case is fact-specific Fisher supra at 280 551 N.E.2d at 1276 and the workers' compensation statutes must be liberally construed in favor of the employee. Id. at 278 551 N.E.2d at 1274; Hampton v. Trimble (1995) 101 Ohio App.3d 282 286 655 N.E.2d 432 435.

We first examine the "in the course of" employment test. The Ohio Supreme Court has interpreted the phrase "in the course of" employment as relating to the time place and circumstances of the injury. Fisher supra at 277 551 N.E.2d at 1274. Normally an employee is in the course of employment when the employee is performing the obligations of the employment contract. Indus. Comm. v. Davison (1928) 118 Ohio St. 180 160 N.E. 693 paragraph two of the syllabus; Midwestern Indemn. Co. v. Video Features Inc. (Nov. 2 1994) Hamilton App. No. C-930401 unreported. Pursuant to the "coming and going rule " an injury sustained by an employee traveling to and from a fixed place of employment is not compensable under the workers' compensation fund. Bralley supra at 303 401 N.E.2d at 450; Fletcher v. Northwest Mechanical Contrs. Inc. (1991) 75 Ohio App.3d 466 471 599 N.E.2d 822 825.

One exception pertains to employees who do not have a fixed place of employment and who are required as an integral part of their job to travel. Fletcher supra at 472-73 599 N.E.2d at 826; Skula v. Nationwide Ins. Co. (May 5 1994) Cuyahoga App. No. 65486 unreported. In Fletcher the court discussed employees who have no fixed situs of employment such as a traveling salesman and employees who have a semi-fixed situs such as a laborer who works at several different job sites. Fletcher supra at 472 599 N.E.2d at 826. In declining to apply the "going and coming" rule Court stated:

It is clear from the Ohio Supreme Court's analysis that whether the employment situs is fixed or non-fixed and therefore whether the "going and coming" rule should be applied to defeat compensation depends upon whether the traveling itself was part of the employment either by virtue of the nature of the occupation or by virtue of the contract of employment. Other jurisdictions have held that the rule excluding coverage for injuries received when traveling to and from work does not apply if the making of the journey is itself a substantial part of the service for which the worker is employed.

Id. at 473 599 N.E.2d at 827.

In Siegen v. Craig Indus. Prods. (Apr. 4 1985) Cuyahoga App. No. 48507 unreported a salesman was leaving his home to go to a sales meeting with a client. His company car which was parked in his garage exploded on ignition due to a natural gas leak. The appellate court concluded that the trial court erred in granting judgment in favor of the Bureau of Workers' Compensation. It stated that "since claimant was engaged in regular duties on behalf of the company when he entered the automobile to attend a scheduled business meeting outside his office he was acting within the scope of his employment at the time of the explosion."

In Hampton supra the employee was a home health care nurse. She was not required to report to her employer's place of business but instead made house calls to patients from her own home. As the employee was driving home from visiting one patient she called another patient that her employer had told her to contact. The employee held a brief conversation telling that patient that she would get back to her when she got home. The employee was injured when she fell in her own driveway.

The appellate court reversed a decision of the trial court granting summary judgment in favor of the employer. It quoted from an Ohio Supreme Court case which involved a non-fixed situs employee: "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." (Emphasis sic.) Id. at 288 655 N.E.2d at 436 quoting Outland v. Indus. Comm. (1940) 136 Ohio St. 488 493-94 26 N.E.2d 760 762. Court concluded that a tried of fact could reasonably infer that the employee was still in the course of her employment because she intended to communicate by telephone with a patient and possibly travel to the patient's house that same night. Id. at 289 655 N.E.2d at 436-37. See also Durbin v. Admr. Bur. of Workers' Comp. (June 26 1996) Hamilton App. No. C-950092 unreported; Midwestern Indemn. supra; Skula supra.

Similarly in the present case the evidence unequivocally showed that Rankin was a non-fixed or at the very least a semi-fixed situs employee. Travel was an integral part of his employment. See Skula supra. He was injured after he had left his last sales call and was traveling to another site where he intended to engage in business activities. That the site happened to be an office in his home is of little consequence. Accordingly we conclude that the trial court did not err in finding that Rankin was injured while acting in the course of his employment.

We now turn to the "arising out of" employment test which contemplates a causal connection between the injury and employment. Fisher supra at 277-78 551 N.E.2d at 1274.

Whether there is a sufficient "causal connection" between an employee's injury and his employment to justify the right to participate in the Workers' Compensation Fund depends on the totality of the facts and circumstances surrounding the accident including (1) the proximity of the scene of the accident to the place of employment (2) the degree of control the employer had over the scene of the accident and (3) the benefit the employer received from the injured employee's presence at the scene of the accident.

Lord supra at syllabus. This list of factors is not exhaustive but merely illustrative of the factors that need to be considered. Fisher supra at 279 551 N.E.2d at 1275 fn. 2; Fletcher supra at 474-75 599 N.E.2d at 827.

In the present case that the accident happened to be somewhat close to Sysco's offices is irrelevant given the circumstances. Further Sysco had no control over the accident scene although it could be argued that it waived direct control over its salespeople and their "tools of the trade " their own automobiles. See Hampton supra at 287 655 N.E.2d at 435.Sysco relies heavily on the control factor but we do not find it to be dispositive given that Sysco had little or no control over its salespeople at any time during the day.

The totality of the circumstances shows that Rankin simply would not have been present at the scene of the accident if he were not performing his employment duties. The company knew that Rankin used his vehicle to travel upon the highways and acquiesced in its use. The company reaped the benefits of Rankin's constant travel on the highway to make sales calls travel that increased the risk to Rankin far beyond that of the general public simply traveling to and from a fixed site of employment. See Lohnes v. Young (1963) 175 Ohio St. 291 293 194 N.E.2d 428 430;Siegen supra. He was leaving his last sales call and taking the shortest direct route to his home where he intended to continue working. That his next job site happened to be his home is not dispositive. He was not on a "frolic of his own" separate from his employment. See Lord supra at 445 423 N.E.2d at 98; Fletcher supra at 475 599 N.E.2d at 827. Consequently the evidence showed that there was a causal connection between Rankin's employment and the injury and the tried of fact could reasonably conclude that the injury "arose out of" Rankin's employment. See Durbin supra; Midwest Indemnity supra; Skula supra.

Additionally Sysco relies heavily on Rankin's statement to his supervisor that the accident was not work-related and his submission of his bills to the company's insurer carrier. These facts are irrelevant to the legal issue of whether Rankin's injuries occurred in the course of and arose out of his employment. Rankin was a lay person unaware of the complexities of the legal issue involved who wanted to get his bills paid. The only possible relevance might have been assessing the witnesses' credibility but matters as to the credibility of evidence are for the tried of fact to decide. State v. DeHass (1967) 10 Ohio St.2d 230 227 N.E.2d 212 paragraph one of the syllabus.

Accordingly we hold that there were issues of material fact and that reasonable minds could reach different conclusions as to whether Rankin's injuries occurred in the course of and arose out of his employment. Consequently the trial court did not err in overruling Sysco's motion for summary judgment. Harless v. Willis Day Warehousing Co. (1978) 54 Ohio St.2d 64 66 375 N.E.2d 46 47.

As to the motion for a directed verdict when a case is tried before a Court not a jury a motion for a directed verdict pursuant to Civ.R.50(A) is improper. Instead it is deemed to be a motion for an involuntary dismissal pursuant to Civ.R.41(B)(2). Johnson v. Tansky Sawmill Toyota Inc. (1994) 95 Ohio App.3d 164 167 642 N.E.2d 9 11;Janell Inc. v. Woods (1980) 70 Ohio App.2d 216 216 435 N.E.2d 1138 1139. Civ.R.41(B)(2) affords greater latitude to the trial court than Civ.R.50(A). Court's decision whether to grant a dismissal pursuant to Civ.R.41(B)(2) will not be set aside unless it is erroneous as a matter of law or against the manifest weight of the evidence. Johnson supra at 167 642 N.E.2d at 11;Janell supra at 217 435 N.E.2d at 1139; Tabor v. Avis Car Leasing (Apr. 1 1991) Butler App. No. CA90-07-141 unreported.

We cannot say that the trial court's decision was erroneous as a matter of law. Further it was supported by competent credible evidence going to all essential elements of the case and therefore we will not reverse it as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984) 10 Ohio St.3d 77 80 461 N.E.2d 1273 1276. Accordingly we overrule both of Sysco's assignments of error and affirm the well-reasoned judgment of the trial court.


Court Raymond E. Shannon Retired from Court of Appeals First Appellate District sitting by assignment of the Chief Justice of the Supreme Court of Ohio.