Bristow v. Cross

• Decision Date: 27 April 1970
• Citation: 173 S.E.2d 815,210 Va. 718
• Court: Virginia Supreme Court
• Parties: Robert BRISTOW v. Barrett C. CROSS and Century Concrete Services, Inc.

Page 815

173 S.E.2d 815

210 Va. 718

Robert BRISTOW v. Barrett C. CROSS and Century Concrete Services, Inc.

Supreme Court of Appeals of Virginia.

April 27, 1970.

Seymour M. Teach, Norfolk (Breit, Rutter, Cohen, Ermlich & Friedman, Norfolk, on brief), for plaintiff in error.

Ralph E. Lawrence, Norfolk (Williams, Worrell, Kelly & Worthington, Norfolk, on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

HARRISON, Justice.

Robert Bristow, plaintiff, seeks to recover damages of Barrett C. Cross and Century Concrete Services, Inc., defendants, for personal injuries sustained in an automobile accident. Defendants filed their special plea to plaintiff's motion for judgment, alleging that his remedy against them was an action under the Workmen's Compensation Act. The lower court sustained the special plea and entered final judgment for defendants, to which action we granted plaintiff a writ of error.

The sole question at issue is whether plaintiff's injury arose out of and in the course of his employment, thereby barring him from maintaining a common law action against defendants.

Cross, who lived at 814 Reservior Avenue, Norfolk, Virginia, was employed by Century Concrete in a supervisory capacity. On Sunday, July 16, 1967, Bristow applied to Cross for employment by Century Concrete and was hired. Plaintiff was told to be at Cross' home the next morning when he and other employees of defendant company would be driven to its office located on Little Creek Road. Thereafter they would be transported to the job site in Hampton.

As directed, plaintiff reported to the Cross residence at 7 A.M. on the morning of July 17, 1967. Bristow and 7 or 8 other employees were being transported in a company truck driven by Cross and were en route to the company's office when a collision occurred between the truck and an automobile driven by one Roger L. Ferry.

In Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331, 332 (1925) we said:

'The General rule, well stated in Clapp's Parking Station v. Industrial Acc. Comm., 51 Cal.App. 624, 197 P. 369, is:

"That an employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment.' The facts agreed upon here and set out above show that the deceased had left his employer's premises and was going home from his work.

'The cases indicate that there are three exceptions to the general rule above stated and only three.

'First. Where in going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages.

'Second. Where the way used is the sole and exclusive way of ingress and egress, with no other way, or where the way of ingress and egress is constructed by the employer.

'Third. Where the employee on his way to or from work is still charged with some duty or task in connection with his employment.'

Defendants take the position here that the first exception applies, i.e. that plaintiff-employee was being transported to work as an incident to his employment, and that his injury arose out of and in the course of his employment.

Counsel for plaintiff cites Farm Bureau Mut. Auto Ins. Co. v. Smoot, 95 F.Supp. 600 (S.D.W.Va.1950), as expressing the transportation exception to the general rule in a manner which is presently accepted by many and possibly the majority of jurisdictions. He quotes the following extract from that case:

'The weight of authority is to the effect that an employee making use of transportation customarily and gratuitously furnished by the employer, in the absence of an express provision for same, is not acting in the course of his employment unless a duty to transport can be implied from the attendant circumstances in the contract of hiring. * * * This duty may be implied where it is shown that the transportation was provided as incident to procuring the services of an employee whose home is a great distance from the place of work. * * * It may also be implied where the transportation provided by the employer is shown to have been a necessary incident to the employment because it was the only practical means by which the employee could travel to and from the place of work. * * * At any rate, it must be shown that the transportation so furnished was a necessary incident of the employment rather than a mere favor not in furtherance of the employer's business. * * *' 95 F.Supp. at 603, 604.

Obviously the exception applies where the transportation is expressly made a part of the employment contract. In the instant case there was no express agreement between Bristow and Cross that defendants were to provide such transportation. However, this court has applied the exception in cases where the transportation furnished by the employer was not an express or negotiated part of the employment contract with the employee. Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E. 183 (1936); Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582 (1963); Stillwell v. Iowa Nat. Mut. Ins. Co., 205 Va. 588, 139 S.E.2d 72 (1964).

Under our decisions an injury sustained by a workman who is provided with transportation when going to and from his work, is considered as arising out of his employment when such transportation is the result of an express or implied agreement between the employer and his employee; or where...