Armstrong v. Liles Const. Co.

• Decision Date: 24 March 1965
• Citation: 389 S.W.2d 261,19 McCanless 678,215 Tenn. 678
• Parties: Alberta H. ARMSTRONG v. LILES CONSTRUCTION COMPANY, Inc., et al. 19 McCanless 678, 215 Tenn. 678, 389 S.W.2d 261
• Court: Tennessee Supreme Court

Page 261

389 S.W.2d 261

Alberta H. ARMSTRONG v.LILES CONSTRUCTION COMPANY, Inc., et al.

19 McCanless 678, 215 Tenn. 678, 389 S.W.2d 261

Supreme Court of Tennessee.

March 24, 1965.

Cummings & Melton, Woodbury, for appellant.

Goodpasture, Carpenter, Woods & Courtney, Nashville, for appellees.

BURNETT, Chief Justice.

The deceased, Arthur H. Armstrong, was the husband of the appellant, Alberta H. Armstrong, and was in the employ of the appellee, Liles Construction Company.The deceased began his work on a project of the appellee's at Sewart Air Force Base in June of 1962.In late October of that year he was killed in an automobile accident while on his way to work in the early morning.The deceased was employed as an assistant supervisor and in this capacity he was required to move about the job area, which was large, frequently during the day.In this movement he used his own car and, pursuant to an agreement with the overall supervisor for the job, he was given a tank of gas a week at company expense.It was also the custom of the deceased to pick up various pieces of small equipment needed on the job on his way home.These things he charged to the company and kept in his car over night and took them to work with him on the following morning.On the day of his death he had several small items in the car which he had purchased the night before and was taking to work with him.On the strength of these facts, it is the contention of the plaintiff-appellant that the trip to the job on the morning in question was within the scope of the deceased's employment thereby entitling the widow to benefits under the Tennessee Workmen's Compensation Act.This contention was rejected in the trial court and a ruling entered for the defendant.From that adverse decision of the Circuit Judge, Mrs. Armstrong now appeals.

The testimony in this case was offered by a fellow employee of the deceased and his supervisor as well as by the operator of the service station where he purchased his gas on the company account and the owner of the hardware store where the goods were purchased on the company account and his wife, who was at that time an employee of the same hardware store.

In substance, the testimony of the people from the hardware store and the gas station just verified that the deceased was in the habit of making regular purchases there and charging them to the company account.These purchases were verified and their relative frequency was established.It seemed the deceased was in fact purchasing one tank of gas per week at the service station and these were paid for by the Company.The deceased was also making routine, almost daily, trips to the hardware store on his way home from work to purchase small items for the job which were charged to and paid for by the company also.His wife also testified that these purchases were brought home to the house with her husband, kept in his car over night, then taken to the job with him in the morning.

Mr. Charles W. Winkle, a fellow employee of the deceased, said that the deceased used his car on the job for transportation and that he, himself, had used the car on one occasion to get something for the job from Nashville.Mr. Winkle said also that the deceased had, on one occasion, used his car to take an injured workman to the hospital on the Air Base.He also substantiated the testimony of the others who testified as to the materials picked up in the afternoon by the deceased and taken to the job the following morning and that this was more or less a general practice of the deceased.

The other witness, and the sole witness for the defense, was the overall job supervisor, Mr. Rex Bennett.Mr. Bennett was the man in charge of the project at the Air Base since the Construction Company was such a far flung operation that the actual owners were simply administrative personnel.The superintendents at the various job sites were given wide discretion as to the methods used in the carrying on of the work, and in this discretionary capacity, Mr. Bennett said he had authorized the deceased to purchase one tank of gas a week, at company expense, to compensate him for the expenses of using his car around the job from day to day.Mr. Bennett also was aware of the practice of the deceased in picking up light supplies in the evening and bringing them to work the following morning but that he was not authorized specifically to do this, yet the company did not object to this and paid for all purchases made in that manner by Mr. Armstrong.

The sole question in this appeal is whether or not, under the facts, which are not in controversy, as a matter of law, the activities of the deceased were sufficiently within the scope of his employment to warrant extension of coverage under the Workmen's Compensation Act to his death.His death resulted from an automobile accident on the way to his employment while he was transporting goods purchased the preceding night for the job.To make this decision we must review the applicable law in this State.

The Tennessee Workmen's Compensation Act is to be liberally interpreted in favor of the employee, Sec. 50-918, T.C.A.

Petitioner cites 99 C.J.S.Workmen's CompensationSec. 221a, page 730, concerning the scope of employment and compensation for dual purpose endeavors.Following that section is a particular sub-heading under the general language cited by the petitioner.The sub-section is entitled, 'Trip or journey', 99 C.J.S.p. 732.The language of this section is:

'In determining the question of the employer's liability for an injury resulting on a trip undertaken for personal as well as business reasons, it is essential to determine whether, at the outset, the trip in question was that of the employer, or that of the employee.If it is the employer's trip, the employee is engaged in his employer's business and acting within the scope of his employment while going to, and returning from, the terminus of the trip.If it is the employee's trip, he is not within the scope of his employment while en route to, or returning from, the terminus of his trip.'

In the same volume the following is noted:

'An employee making a trip necessitated by his work is in the course of his employment so as to entitle him to compensation for an injury sustained during the trip, although the employee, while so traveling, is also serving some purpose of his own.The mission for the employer must be the major factor or, at least a concurrent cause of the journey; it is insufficient if the employer's business is merely incidental to what the employee was doing for his own benefit, and an injury suffered by an employee on such a trip does not arise out of, or in the course of, the employment.'99 C.J.S.Workmen's CompensationSec. 221a, pages 733, 734 and 735.(Emphasis added.)

In 58 Am.Jur., Workmen's Compensation, Sec. 220, entitled, 'Where Employees Has Some Duty at Home or en Route', we find the following statement of the rule, previously quoted in C.J.S.:

'But the mere fact that he performs at his home some of the duties of his employment, or work incident thereto, does not of itself render compensable an injury sustained while traveling between his home and the employer's premises; in order to have such effect the performance of such duties must have necessitated, or been the occasion for, such traveling.'

The above statement is further developed in 58 Am.Jur., Workmen's Compensation, Sec. 241, as follows:

'While the question whether a trip taken by an employee in the interest of both himself and his employer is to be regarded as the latter's, so as to warrant allowance of workmen's compensation for injuries sustained in the course thereof, or his own, is in a sense a question of fact, it is a question that must be determined by the application of some legal test or standard.* * * This does not, however, require or authorize the weighing of the motives and objects of the employer and employee for the purpose of ascertaining the most important or compelling cause of the journey, but simply requires that the service of the employer be at least a concurrent cause of the trip.'(Emphasis supplied.)

In these cases where the employee is engaged in travel which is not ordinarily within the scope of his employment, the relation of the accident to the injury is an essential point of inquiry.The question is whether the employer exposed the employee to the risk.The service to the employer must, then, be...