Brown v. Palmer Const. Co., Inc.

• Decision Date: 14 August 1972
• Parties: Oran W. BROWN and Steven R. Webster v. PALMER CONSTRUCTION COMPANY, INC. and American Employers' Ins. Co.
• Court: Maine Supreme Court

Page 263

295 A.2d 263

Oran W. BROWN and Steven R. Webster v. PALMER CONSTRUCTION COMPANY, INC. and American Employers' Ins. Co.

Supreme Judicial Court of Maine.

Aug. 14, 1972.

Platz & Day by Thomas E. Day, Jr., Thomas F. Kinnelly, III, Lewiston, for plaintiffs.

Mahoney, Desmond, Robinson & Mahoney by Lawrence P. Mahoney, Robert F. Hanson, Portland, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WEBBER, Justice.

These companion cases, petitions for award of workmen's compensation benefits, were by agreement heard, decided and appealed together upon a single record. The Industrial Accident Commission awarded compensation to both petitioners.

The facts are not in dispute, the evidence having consisted of the uncontradicted testimony of Petitioner Brown. ¹ Both claimants reside in the Lewiston-Auburn area and where employed by Palmer Construction Company, Inc. At the request of their employer, they went to Brattleboro, Vermont to work as linemen on a job undertaken in that area. Brattleboro is beyond reasonable commuting distance from the claimants' residence in Maine and they were expected by their employer to find lodging facilities of their own choice near the Vermont job location. To this end the employer provided additional compensation to cover living expenses away from home. The petitioners procured an apartment with kitchen facilities in which they could prepare their own meals. The petitioners worked regular hours on the job and were not 'on call' during off hours. On October 17, 1968 while starting to prepare a meal, both petitioners were injured when the oven of their gas stove suddenly exploded. After carefully reviewing the authorities relating to coverage for so-called 'traveling employees,' the Commission concluded that 'there is no rational basis for distinguishing between a so-called 'traveling employee' and the employees in this case, the only distinction being that in the 'traveling employee' case he would be on the road the next day, whereas in this case he would return to a set place of employment.' We agree and affirm the awards.

We have had no prior occasion to consider the 'traveling employee' rule. Cases in other jurisdictions have for the most part dealt with traveling salesmen and long haul truck drivers. Larson's Workmen's Compensation Law, Vol. 1, p. 443, Sec. 25.00 states:

'Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.'

An examination of the authorities, many of which are assembled in Larson's treatise, clearly reveals that they are in irreconcilable conflict. Moreover, a single factual variation may control the result and decision in this area must be on a case-by-case basis. The problem is of course whether or not the injury occurring away from the actual work site in circumstances such as are presented in the instant case can be said to have occurred in the course of and arisen out of the employment as required by 39 M.R.S.A., Sec. 51. 'Arising out of' refers to the origin of the accident while 'in the course of' refers to time, place and circumstances. Paulauskis' Case, (1927) 126 Me. 32, 34, 135 A. 824. If the accident is the product of a risk created by or incidental to the employment and if the worker on a job far from home may be treated as continuously employed for compensation purposes, both elements are satisfied.

We approach this problem mindful of the legislative mandate that the Act be given a liberal construction 'with a view to carrying out its general purpose.' 39 M.R.S.A., Sec. 92. The purpose of the Act was to eliminate litigation and transfer the burdens resulting from industrial accidents from the individual to the industry and finally to distribute it on society as a whole. Scott's Case (1918) 117 Me. 436, 104 A. 794.

In Souza's Case (1944) 316 Mass. 332, 55 N.E.2d 611, the fatally injured employee was a service man working on marine engines on a job which required that he live away from home. He received from his employer additional compensation to cover the expense of lodging of his own choice. He died as the result of a rooming house fire. The Court, affirming an award of compensation, placed emphasis on the fact that by the nature of his work the employee was 'on call' in case of necessity 24 hours a day. The Court made some significant observations which we quote as follows:

'The question is whether his employment brought him in contact with the risk that in fact caused his death.

'But it seems to us that the connection between the employment and the risk is substantially the same whether the employer or the employee selects the particular place, as long as lodging away from the employee's home or regular place of abode is provided by the employer as an incident of the work, and is required by the terms of the employment, and as long as the employee selects a place that fulfills the requirements of the employment and that is otherwise proper in the sense that it involves no unnecessary risk.'

What might be viewed as an even more liberal view of the 'traveling employee' rule is found in Wiseman v. Industrial Acc. Comm. (1956) 46 Cal.2d 570, 297 P.2d 649. There a bank officer on business for his employer in New York was occupying his hotel room with a woman not his wife. There was an indication of excessive drinking and death was apparently attributable to careless smoking by one of the two occupants. Nevertheless, the California Court awarded compensation. Traynor, J., writing for a divided court, was of the opinion that immoral and unlawful acts would not change the right of the traveling employee to coverage while in his hotel room. Two Justices dissenting were of the view that the injury resulted, not from a risk of employment, but from purely personal activity not reasonably contemplated as within the terms and conditions of employment-and which they likened to a 'frolic of his own.'

The appellants rely heavily upon the decision in Rodriguez v. Great American Indemnity Co. (1957) 5 Cir., 244 F.2d 484. In that case the deceased employee, a...