Austin Drilling Co. v. Rice, 54297
| Decision Date | 27 May 1980 |
| Docket Number | No. 1,No. 54297,54297,1 |
| Citation | 1980 OK CIV APP 28,616 P.2d 446 |
| Parties | 1980 OK CIV APP 28 AUSTIN DRILLING COMPANY, Mid-Continent Casualty Company, Petitioners, v. Blaine E. RICE, Workers' Compensation Court, Respondents |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
ORDER SUSTAINED.
Harlan S. Pinkerton, Jr., Tulsa, for petitioners.
Russell, Payne & Farber by J. Clark Russell, Oklahoma City, for respondent.
Claimant, Blaine E. Rice, was a member of a drilling crew working on an oil drilling rig owned and operated by the Austin Drilling Company, hereinafter Austin.
Claimant was paid $6.40 per hour as wages and $11.00 per day as travel pay. He lived between 40 and 50 miles from the drilling site.
As was his custom, claimant drove his own car to and from work. On the date of injury, February 26, 1979, claimant was driving to work on a public road when he had an automobile accident and therein sustained personal injuries on which his claim for compensation is based. The nature and extent of the injuries are not questioned in this appeal.
The Order of the Workers' Compensation Court, affirmed en banc, holds that said injuries arose out of and in the course of claimant's employment.
The decisive issue in this appeal is whether injuries sustained in an automobile accident on a public road on the way to work, can be construed as injuries arising out of and in the course of employment under 85 O.S. 1971, § 11.
This Court will take judicial notice of the fact that members of oil well drilling crews usually live long distances from the drilling sites which change locations every few weeks, and that travel of considerable distances to get to and from work is an integral part of that type of employment.
The case of Norvill v. Paul Hardeman, Inc., Okl., 377 P.2d 208 (1962), is cited and quoted by Austin as being the only case in Oklahoma specifically on all points. In the Norvill opinion we note the following On February 2, 1961, at approximately 6:45 P.M. claimant was riding to his home in Hobart, Oklahoma, in an automobile owned and driven by Cecil Driggers, a fellow employee. Approximately 2.6 miles west of Hobart, Oklahoma, the car in which he was riding collided with one driven by Homer Cribbs. No one was hurt in this accident and claimant and Driggers had sent word to the highway patrol and were waiting to report the accident. While waiting they decided to smoke and found themselves without a match. Employee crossed the road to obtain a match from Cribbs, and while returning he was struck by another automobile sustaining the injury involved in this proceeding.
Neither does the fact that claimant was allowed $2.00 per day designated as travel pay constitute an agreement, express or implied, to transport the employee to or from the place of employment. He was not using the money thus obtained for expenses of a method of conveyance used by him or any one else at the direction of the employer. There is no evidence that there was an agreement implied or otherwise for the employer to furnish a method of conveyance.
Two distinctions exist between Norvill and the present case, namely, (1) Norvill was not injured in the accident on the way home from work but later, on a mission of his own, and (2) he was not using the travel pay as expenses for a method of conveyance.
In the present case, claimant, Rice, testified in pertinent part:
Q So how far did you have to travel each day to go to work?
A Forty to fifty miles.
Q All right. At the time of this accident, what was your schedule of payment? How were you paid by Austin Drilling Company?
A Six forty per hour and $11.00 per day.
Q What was the $11.00 a day for?
A Car expenses driving to and from work, as I understood it.
Q Transportation expense?
A Yes, sir.
Q Did you drive to and from work every day?
A Yes, sir; seven days a week.
Q You weren't in any type of car pool
A No.
Q Who directly hired you on behalf of Austin Drilling Company?
A Tony Barger.
Q And he was your driller; is that correct?
A Yes, sir.
Q When he hired you, I take it that he told you that you would be paid six forty a day plus $11.00 expenses; is that your understanding?
A $11.00 a day for driving, yeah.
Q Well, did he specifically say $11.00 a day for driving?
A He said driving pay: $11.00 a day.
The driller, Barger, testified on cross-examination as follows:
Q And you did testify, on direct examination, that part some part of that $11.00 is for the purpose and use and cost of transportation to and from because of the odd number of miles to and from a rig?
A Yes, I did.
Q And this money was paid to Mr. Rice as part of his employment?
A Yes.
Jimmy Lynn Austin, vice-president of Austin Drilling Company, testified on direct examination:
Q We have already admitted that the pay check that the employee receives has the legend on the stub of transportation expense. Is that true?
A Yes, sir.
Q And can you tell us the reason that the phrase or term transportation expense is employed or used?
A Rather than put miscellaneous expense where it would cover any other clothing items gloves, shoes, hard hats which they would buy theirself, this phrase was put in.
Q All right, sir. Is it true that no deductions are made from this $11.00?
A That's correct.
Q And is it true that it is included with the hourly rate of pay times the hours worked in one particular check each pay period?
A Yes, sir.
Q This might be leading, but is it or is it not true that the denomination of transportation expense, though, does appear as a separate item over and above the hourly pay?
A Yes, sir.
Q And, of course, deductions are made from the hourly pay?
A Yes, sir.
And on cross-examination, Mr. Austin further testified:
Q And is that a standard type of check stub for the payment of hours that he worked for Austin Drilling and Austin-Dunham?
A Yes, sir.
Q I notice on there that there are hourly wages plus overtime rate with income tax deductions, and everything. Everything is shown on there; is that correct?
A Yes, sir.
Q Down at the bottom, it says what: Car expense
A Yes, sir.
A Yes, sir.
Claimant, Rice, was recalled to the stand, and further testified:
Q Well, but at the time you were hired, what was your understanding that this $11.00 a day was to be used for?
A My purpose would have been to understand that it would have been for gasoline to and from work or repair the car-whatever.
Q As indicated on here as car expense?
A Yes, sir.
In Novak v. McAlister, Okl., 301 P.2d 234 (1956), the syllabus states:
An injury does not arise out of the employment within the meaning of the ...
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