Blankinship Logging Co. v. Brown

• Citation: 208 S.W.2d 778,212 Ark. 871
• Decision Date: 09 February 1948
• Docket Number: 4-8430
• Parties: Blankinship Logging Company v. Brown
• Court: Supreme Court of Arkansas

208 S.W.2d 778

212 Ark. 871

Blankinship Logging Company v. Brown

No. 4-8430

Supreme Court of Arkansas

February 9, 1948

Rehearing Denied March 15, 1948.

Appeal from Cleveland Circuit Court; John M. Golden, Judge.

Affirmed.

J Ed Morneau, for appellant.

Duval L. Purkins, for appellee.

OPINION

Minor W. Millwee, Justice.

Henry Brown had been employed by appellant Blankinship Logging Co., as a log cutter for about eight years on October 18, 1946, when he was killed in the wreck of a truck belonging to the company. Appellee, Bertha Mae Brown, is the widow of Henry Brown and filed a claim with the Workmen's Compensation Commission on behalf of herself and their six minor children. The logging company is owned and operated by G. R. Blankinship and will hereinafter be referred to as "Blankinship."

The claim was resisted by Blankinship and the insurance carrier and, after a hearing before Commissioner Riffel at Warren, Arkansas, appellee was awarded the maximum benefits under the compensation law on February 21, 1947. At the request of the employer and insurance carrier additional evidence was presented at a hearing before the full commission which resulted in the same award as made by Commissioner Riffel. On appeal to the circuit court the award was affirmed and appellee was allowed interest thereon at the rate of 6% from May 19, 1947, the date of the award by the full commission.

Appellant's principal contention for reversal of the judgment is that the death of Henry Brown did not arise "out of and in the course of employment" as required by our Workmen's Compensation Law (§ 2(f) of Act 319 of 1939). In determining whether there was substantial evidence to support the findings of the commission on this issue, we must view the facts in the light most favorable to support the award. J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113.

We summarize the facts as follows: About two months prior to Brown's death Blankinship began a logging operation about 14 miles from Crossett, Arkansas, which is located about 60 miles south of Warren, Arkansas. Blankinship's place of business was located at Warren where most of the logging crew resided. Blankinship furnished a truck which was used in transporting the crew to Crossett on Sunday evenings. The crew remained in Crossett during the work week and the truck was used in transporting the crew to and from the log woods. On Friday evening the crew returned to Warren in the same truck. Tyree Crane, a saw filer, drove the truck until about three weeks prior to the death of Henry Brown. Crane lived about 10 miles north of Warren and kept the truck at his home from Friday night until Sunday night each week.

When Tyree Crane signified his intention to quit work, Joe Woodward was employed in his place as saw filer. Woodward lived at Fordyce, Arkansas, about 30 miles northwest of Warren. After Tyree Crane terminated his employment, Henry Brown started driving the truck daily between Crossett and the log woods and on the week-end trips to Warren. At that time all members of the crew except Woodward and Mack Crane lived at Warren. On Friday night following Woodward's employment Brown drove the truck to Warren and employees living there were let out near their homes. Brown then proceeded to Fordyce where he delivered Woodward to his home and returned to Warren where the truck was kept over the week-end. On the following Sunday Brown drove to Fordyce for Woodward, and other members of the crew boarded the truck at Warren and the truck proceeded to Crossett. The same procedure was followed the following week except that Mack Crane was picked up near his home several miles north of Warren and on the highway between Warren and Fordyce.

On Friday, October 18, 1946, the crew arrived in Warren from Crossett about 9 p. m. with Henry Brown driving the truck. All of the crew except Woodward, Mack Crane and Tom Cook, Brown's neighbor, left the truck near their homes in Warren. Brown stopped at his home for a few minutes and then drove to Fordyce where Woodward was delivered to his home shortly before midnight. The truck was then driven back toward Warren until it reached New Edinburg where it turned east to the Crane community and Mack Crane was let out of the truck. Brown and Tom Cook proceeded toward Warren and the truck became involved in a wreck resulting in the death of both men.

Joe Woodward testified that when G. R. Blankinship hired him he was told to report to James Henderson, the woods foreman. He boarded the truck at Warren on Sunday evening and talked to Henderson the next morning. Henderson agreed to furnish transportation to Woodward to and from his home at Fordyce. James Henderson denied making this agreement, but testified that he knew that Brown was using the truck in transporting Woodward to Fordyce and that he had not instructed him to do otherwise. Blankinship knew that Brown was driving the truck in the place of Tyree Crane, but denied any knowledge of the use of the truck for transportation of crew members beyond Warren. He also testified that it was the general practice to furnish transportation to the members of the logging crew; and that if he had known about the trips to Fordyce, he would have let the arrangement stand. None of the employees paid anything for transportation to and from work, and Blankinship paid fuel and other operating expenses of the truck while Brown was driving it.

There was some evidence that Brown and other crew members were drinking on the night Brown was killed, but appellants concede that the testimony is insufficient to defeat the claim for compensation on account of drunkenness.

Appellant relies on the general rule to the effect that injuries sustained by employees going to and returning from the regular place of employment are not deemed to arise out of and in the course of the employment. The authorities generally recognize several exceptions to the general rule. One of these exceptions, which is as well established as the rule itself, is stated by the Washington Court in the case of Venho v. Ostrander Railway & Timber Co., 185 Wash. 138, 52 P.2d 1267, 1268, as follows: "When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment he is within 'the course of his employment,' as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the...