Crouch Funeral Home, Inc. v. Crouch

• Decision Date: 14 November 1977
• Docket Number: No. 77-220,No. 2,77-220,2
• Citation: Crouch Funeral Home, Inc. v. Crouch, 557 S.W.2d 392, 262 Ark. 417 (Ark. 1977)
• Parties: CROUCH FUNERAL HOME, INC. and Aetna Insurance Company, Appellants, v. James Phillip CROUCH, Appellee
• Court: Arkansas Supreme Court

Page 392

557 S.W.2d 392

262 Ark. 417

CROUCH FUNERAL HOME, INC. and Aetna Insurance Company, Appellants, v. James Phillip CROUCH, Appellee.

No. 77-220.

Supreme Court of Arkansas, Division No. 2.

Nov. 14, 1977.

Smith, Williams, Friday, Eldredge & Clark by George E. Pike, Jr., Little Rock, for appellants.

Murphy, Blair, Post & Stroud by Robert D. Stroud, Batesville, for appellee.

FOGLEMAN, Justice.

Appellants contend that there is no substantial evidence to support the Workmen's Compensation Commission finding that appellee James Phillip Crouch suffered a compensable injury arising out of and in the course of his employment with Crouch Funeral Home, Inc. We agree, reverse the award and dismiss the claim.

Appellee is a licensed mortician employed by the corporation which was owned by appellee, his mother and his brother, except for a 10% interest owned by an employee, John W. Baker, who is not related to the Crouches. Appellee was vice-president of the corporation. His duties included direction of funerals, embalming and many menial duties, which included stamping envelopes, washing funeral cars and sweeping the parking lot. His mother, Mrs. Frances Crouch, was the president of the corporation and manager of its funeral home, which was located at Batesville. All employees, except corporation officers, worked and were paid on an hourly basis. All had a work schedule and were paid each Saturday by Mrs. Crouch, who was the only person who knew the rate of pay of each employee. She was also the only person who was authorized to sign checks for the corporation. She kept the payroll records under lock and key in her office and no one else had access to them. A bookkeeper had authority to prepare checks for the payment of bills, but not to sign them.

On or about March 4, 1975, Mrs. Crouch left Batesville on a purely personal trip to visit her son in Philadelphia. She planned to return to Batesville on March 14. Before she left she prepared payroll checks based on a forty-hour week for delivery to the employees on March 8, 1975. Her expected date of return was posted on the bulletin board on which the employee work schedule was posted. She flew to Philadelphia from the Memphis airport and returned to that airport as scheduled. She left no instructions for anyone to meet her at the airport. On previous occasions, she had been met at the Memphis airport upon her return from such vacation trips by members of her family, who returned her to Batesville in their own private automobiles. On other such occasions, she had been met and returned in company automobiles by company employees, who were paid by the company for the time required. At least two of these employees were paid hourly wages for the time spent on these trips. Mrs. Crouch compensated family members who made such trips from her personal funds. On some occasions company employees had taken her to her destination on such trips.

Appellee arose at 5:00 a.m. on March 14. He found snow on the ground, and put chains on two of the company vehicles, which were then taken by two company employees to Mountain View. After doing some paper work and shoveling some snow around the funeral home, appellee picked up three friends and drove to Memphis in a 1971 Cadillac automobile owned by the corporation and used as a "family" car for the transportation of families of deceased persons whose funerals were conducted by the company, but when not being so used, Mrs. Crouch used it whenever she wished for either business or personal missions. Appellee dropped the friends at their destination in Memphis and went to the airport and picked up his mother. Taking and returning these friends was strictly a personal accommodation unrelated to the corporate business in any way. Appellee then picked up the friends and started toward Batesville. At Fair Oaks, the Crouch vehicle was involved in a collision with another automobile, as a result of which Mrs. Crouch and two of the friends were killed, and appellee suffered the injuries on which his claim is based. It was stipulated that Mrs. Crouch was not within the scope of her employment at the time of the collision.

The commission considered appellee as an employee, rather than as an executive officer, of the corporation for the purposes of this case. We do, too, in the sense that the test of the right to compensation is not the title of the injured party, but the nature and quality of the act he is performing at the time of the injury. See Brooks v. Claywell, 215 Ark. 913, 224 S.W.2d 37.

We find no basis for a finding, and the commission did not find that Mrs. Crouch directed appellee to pick her up at the airport. Neither is there any evidence that she directed or expected any employee of the corporation to do so. Appellee had taken her to the airport when she left for Philadelphia in the same car he was driving when he picked her up upon her return. We find no substantial evidence to support the commission's findings. Cases relied upon by appellee where an employee was directed by his employer, whether related to the employee or not, to perform some personal service to the employer, or for his personal benefit, are not applicable here. There is no basis whatever for a finding that Mrs. Crouch directed her son to meet her and bring her home from the airport or to direct an employee to do so. The idea, that appellee as an officer of the company, directed himself, as an employee, to do so, is too far fetched to merit serious consideration.

The theory of the commission in this case would be much more easily reached were it not for a combination of factors in this case that readily distinguish it from other situations in which the accident could reasonably be said to arise out of and in the course of the employment of the injured employee. They are: (1) the family relationship; (2) the absence of any direction or order to the employee to go on this mission; (3) Mrs. Crouch was returning from a personal visit; (4) Mrs. Crouch was not in the scope of her employment; (5) the clear indication that the expectation that she would be met and returned home by a relative, who would be compensated from Mrs. Crouch's personal funds, was at least as great as the expectation that she would be met by an employee; (6) the taking and returning of friends on the trip strictly as a personal favor, without any possible relationship to the...