Calloway v. State Workmen's Compensation Com'r

• Decision Date: 15 July 1980
• Docket Number: No. 14719,14719
• Citation: 268 S.E.2d 132,165 W.Va. 432
• Parties: George C. CALLOWAY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Sheppards Auto Supply Company.
• Court: West Virginia Supreme Court

Page 132

268 S.E.2d 132

165 W.Va. 432

George C. CALLOWAY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Sheppards Auto

Supply Company.

No. 14719.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Syllabus by the Court

1. Workmen's compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of his employer's business.

2. Where the employee deviates from the employer's business, he may be denied compensation if the injury occurs during the deviation, unless the deviation is so slight that the business purpose is not interrupted. Once the employee ceases the deviation and returns to the employer's business, a subsequent injury is ordinarily compensable.

3. In the case of a major deviation from the business purpose, compensation ordinarily will be barred on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is returning to the business route or purpose.

4. The longer the deviation exists in time or the greater it varies geographically from the normal business route or in purpose from the normal business objectives, the more likely that it will be characterized as major.

Harold S. Albertson, Jr., Hall, Albertson & Jones, Charleston, for appellant.

Michael R. Crane, Boettner, Campbell & Crane, Charleston, for appellee.

MILLER, Justice:

The claimant, George C. Calloway, asserts that the Workmen's compensation Commissioner and the Appeal Board erred when they dismissed his claim as not having occurred within the course of his employment because of a substantial personal deviation from his employer's business. Mr. Calloway sought to recover for injuries resulting from a March 27, 1976, motor vehicle accident.

Mr. Calloway was employed as an outside salesman for Sheppards Auto Supply Company which, on the day in question, had sent Mr. Calloway and a fellow employee, David Worley, to Logan County to attempt to solicit new business. They traveled from the company's main office in Montgomery to Logan County in a company vehicle. At one of the hearings, Dale Sheppard, the company's general manager, outlined the purpose of the trip:

"He was to go through the area making calls on these strip mines and the coal mines and essentially asking them for business and tell them what we can supply and the products we have and the service we can supply them in trying to drum up business."

The employer challenged the compensability of the claim, asserting that Mr. Calloway converted the trip into a personal, social visit and a beer-drinking escapade. To support its position, the company introduced the testimony of Mr. Worley, who testified that though the claimant made approximately ten stops during the trip, only one entailed promoting the intended business purpose. He testified that during the morning of March 27 the claimant visited relatives, and that in the afternoon and evening he and Calloway drank beer in various local taverns. He stated that they left the Green Lantern tavern early in the evening and proceeded to another tavern located in Sandy Bottom, where they consumed more beer and played pool.

At approximately 11:00 p. m., Worley insisted that they start home. When the claimant refused, they had an argument. Worley went outside the tavern to the company truck, the claimant followed him and grabbed his shirt, and Worley struck the claimant, knocking him to the ground and rendering him unconscious. Worley took the truck keys, placed the claimant in the truck, and proceeded to start the return trip. The accident occurred a short time later.

Because of the rather severe head injuries he had received, the claimant did not have a detailed recollection of the events surrounding the trip. His witnesses consisted mainly of the relatives he had visited, and their testimony indicates that he may have asked some of them about possible business contacts in the area. It does not appear that any potential customer was actually contacted, except that during a stop at a filling station before noon, the claimant indicated that he asked the attendant if the station could use some auto supplies. He generally recalls drinking beer in several taverns and playing pool with Worley.

Workmen's compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of his employer's business, as stated in 82 Am.Jur.2d Workmen's Compensation § 250 (1976):

"With respect to the compensability of injuries to employees, the performance of whose duties necessitates their traveling from place to place away from the premises of the employer, sustained while so traveling, as arising out of and in the course of the employment, the right to compensation depends, as in other cases generally, upon whether the injury results from a risk which is inherent in the nature of the employment, or which is reasonably incidental thereto, or to which the employee is specially exposed, and upon whether the employee, at the time of the occurrence of the accident, was engaged in the exercise of some function or duty reasonably necessary or incidental to the performance of the contract of employment, or, if not actively engaged, whether he was at a place where he was authorized or required by such contract to be. It has been said that an employee who is away from home on a business trip for his employer is in most circumstances under continuous workmen's compensation coverage from the time he leaves until he returns home, although there are exceptions to this rule. The course of the employment of a traveling salesman, for the purposes of workmen's compensation, covers both the time and place of the traveling as well as of the selling of goods."

Where, however, the employee deviates from the employer's business, he may be denied compensation if the injury occurs during the deviation, unless the deviation is so slight that the business purpose is not interrupted. Once the employee ceases the deviation and returns to the employer's business, a subsequent injury is ordinarily compensable. This rule is summarized in 1 A. Larson, The Law of Workmen's Compensation § 19.00 (1978):

"An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial."

In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is returning to the business route or purpose. See, e. g., True v. Longchamps, Inc., 171 Conn. 476, 370 A.2d 1018 (1976); Central Air Conditioning Co. v. Garren, 239 So.2d 497 (Fla.1970); Aaron v. Industrial Commission, 59 Ill.2d 267, 319 N.E.2d 820 (1974); Johnson v. McGehee Bros. Furniture Co., 256 So.2d 741 (La.App.1971); Hebrank v. Parsons, Brinckerhoff, Hall & MacDonald, 88 N.J.Super. 406, 212 A.2d 579 (1965); Carter v. Burn Construction Co., 85 N.M. 27, 508 P.2d 1324 (Ct.App.1973); Owen v. Oneida, Ltd., 16 A.D.2d 1005, 229 N.Y.S.2d 325 (1962); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Scarpelli v. Workmen's Compensation Appeal Board, 18 Pa.Cmwlth. 30, 333 A.2d 828 (1975), cert. denied, 423 U.S. 1077, 96 S.Ct. 864, 47 L.Ed.2d 88 (1976).

The key is how the terms "major" and "deviation" are defined, and often courts do not address this point. It is apparent that a deviation can be determined only after the nature of the employment and the scope of the business trip are known. This involves an analysis of the employment relationship, the purpose of the trip, the employer's rules or instructions relating to the trip, as well as past practices, in order to determine the reasonableness of the employee's conduct as it relates to the employer's business.

A deviation generally consists of a personal or nonbusiness-related activity. The longer the deviation exists in time or the greater it varies geographically from the normal business route or in purpose from the normal business objectives, the more likely that it will be characterized as major.

In Carter v. Burn Construction Co., supra, the employee was furnished a company truck. On the day in question he left work at 5:30 p. m. and stopped at a tavern for some four and...