Brooks v. Wage

• Decision Date: 01 May 1967
• Docket Number: No. 5--4179,5--4179
• Citation: 414 S.W.2d 100,242 Ark. 486
• Parties: Ruthie Mae BROOKS v. Robert E. WAGE et al.
• Court: Arkansas Supreme Court

Page 100

414 S.W.2d 100

242 Ark. 486

Ruthie Mae BROOKS v. Robert E. WAGE et al.

No. 5--4179.

Supreme Court of Arkansas.

May 1, 1967.

Howell, Price & Worsham, Little Rock, for appellant.

McMillen, Teague, Bramhall & Davis, by Thomas M. Bramhall, Little Rock, for appellees.

JONES, Justice.

This is a workmen's compensation case involving the question of whether or not the injury and resulting death of an employee grew out of and occurred within the scope of his employment. The Workmen's Compensation Commission held that it did. The Circuit Court on appeal reversed the Commission and we agree with the Circuit Court.

The claim was filed by Ruthie Mae Brooks, the widow of a deceased employee, Fred W. Brooks. The Commission rendered a thorough and comprehensive opinion in this case, but we do not agree with the legal conclusion reached by the Commission on the facts of this case. We conclude that there was no substantial competent evidence to support the findings and award of the Commission.

At the time of his injury and death, Fred W. Brooks had been employed for a number of years by Robert E. Wage in the general contracting business. He had worked on jobs all over Little Rock, including two or three jobs in the Broadmoor Addition. The decedent drove to and from work in his own pickup truck. He worked by the hour and his regular work day started at 8:00 a.m. and stopped at 4:30 p.m. The decedent lived in the Tie Plant area on the east side of North Little Rock, and for two days prior to February 15, 1965, he worked on his job in the Brookwood Addition to Little Rock, located off the new Benton Highway near the city limits in the extreme southwest section of Little Rock.

Early on Monday morning, February 15, the respondent employer called decedent at home by telephone and requested him to stop by Long-Bell Lumber Company, 4501 Asher Avenue, and pick up some reinforcing rods and bring them on out to the job. On this point the employer testified as follows:

'Q. What were your instructions to him at that time?

A. I told him to come by Long-Bell Lumber Company and pick up some reinforcing rods and to go to No. 8 Rosewood, which is in the Brookwood Addition out behind Meadowcliff.'

and at page ten of the transcript, Mr. Wage testified as follows:

'Q. Mr. Wage, what hours did Mr. Brooks normally work?

A. From eight to four-thirty.

Q. Now, would you have had any reason to expect him to reach Long-Bell Lumber Company prior to eight o'clock?

A. No.

Q. Would you have wanted him to be on the job out there in--was it Brookfield?

A. Um-hum (nods affirmatively). No. Brookwood.

Q. By eight o'clock or would it have been satisfactory to you if he had reached Long-Bell by eight o'clock?

A. No, his work time started at eight o'clock and I had no call on him before eight o'clock or after four-thirty.

Q. I see.

A. Unless we agreed to it.'

On the morning of February 15, the decedent left home about 7:00 a.m., picked up two of his neighbor women who worked in Little Rock, drove south across the bridge from North Little Rock to Little Rock, then drove west out No. 10 Highway through the extreme north and northwest side of Little Rock, turned south onto Monroe Street from Highway 10 and delivered the neighbor women to the place of their employment at 1701 North Monroe Street. He then drove north on Monroe Street toward No. 10 Highway.

Decedent was killed in a collision at the intersection of Broadmoor and Berkshire Drives in the Broadmoor Addition lying west of University Avenue in the extreme west or southwest section of Little Rock, and several blocks northwest of Long-Bell Lumber Company, and several more blocks north of No. 8 Rosewood in the Brookwood Addition. The collision occurred about 7:30 or 7:35 a.m. while the deceased was driving in a northwesterly direction on Broadmoor Drive. He was traveling in a course that would have led him into Boyle Park or the intersection with west 12th Street. He had already crossed 12th Street in coming from North Monroe and was traveling in the opposite direction from Long-Bell Lumber Company, where he was not expected to be for another twenty-five or thirty minutes, when the collision occurred.

There seems to be no question but that an employee is not within the course of his employment under the Arkansas Workmen's Compensation Act while traveling to or from his job before or after regular work hours unless he falls within one of several generally recognized exceptions to the 'going and coming' rule.

This court has recognized various exceptions to the going and coming rule, such as where an employee has reached a place so close to the employer's premises as to be considered on a part of the employer's premises.

Bales v. Service Club, 208 Ark. 692, 187 S.W.2d 321; where the employer furnishes transportation to and from the place of employment. Hunter v. Summerville, 205 Ark. 463, 169 S.W.2d 579, in the case of traveling salesmen, where traveling is an integral part of the employment. Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W.2d 637, also where the employer agrees to furnish transportation, Hunter v. Summerville, 205 Ark. 463, 169 S.W.2d 579.

Another exception, and the one argued in this case, is where the employee is on a special mission for the employer before or after regular working hours. Arkansas, as well as most states, recognizes this exception, but the gray area in this exception is broadened when the employee deviates from his route in performing the special service for his employer in order to perform some service for himself or for a third party.

To cite and attempt to distinguish the cases in this area of exception to the 'going and coming' rule, would enlarge this opinion to text book chapter proportions, and there are already text book chapters on the subject; 8 Schneider, Workmen's Compensation, chapter 33, § 1733, and volume 7, § 1680; 1 Larson's Law on Workmen's Compensation, § 19.50.

The New York case of Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (N.Y.1929) cited by appellant contains facts somewhat different from the facts in the case at bar. It primarily involved the 'dual purpose doctrine,' but the opinion in that case by Chief Justice Cardozo presents sound reasoning on the 'going and coming' rule and its exceptions, as well as the 'dual purpose' doctrine, and has been followed by this court.

The deceased employee, Marks, made his home and place of business in Clifton Springs, New York. On the day in question, his wife was visiting in Shortsville, where Marks was to pick his wife up at the end of the day. The employer, learning of the planned trip, asked Marks to take his tools and fix some faucets in a house in Shortsville. The job was of a small nature. There would have been no need for a special trip as no profit could have been derived. Marks did not use company transportation, but used his own automobile. He would be paid the normal wage, however.

Marks was killed enroute to Shortsville. The journey was not made at the request of his employer or for employer's work. The trip was made to fulfill his promise to pick up his wife.

In the Marks' case, Chief Justice Cardozo states the issue as follows:

'Whether the injury was one 'arising out of and in the course of the employment' * * * is the question to be answered.'

In arriving at the decision in that case, Chief Judge Cardozo speaking for the New York Court of Appeals, says:

'Unquestionably injury through collision is a risk of travel on a highway. What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.

'In such circumstances we think the perils of the highway were unrelated to the service. We do not say that service to the employer must be the sole cause of the journey, but at least it must be the concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. We cannot draw that inference from the record now before us. No, on the contrary, the evidence is that a special trip would have been refused since the pay would have been inadequate. The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.'

Perhaps our own case of Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957), also cited by appellant, is more in point with the case now before us.

In that case, Martin, the employee, was employed as a purchasing agent, and one of his...