Frank Lyon Co. v. Oats

• Citation: 225 Ark. 682,284 S.W.2d 637
• Decision Date: 12 December 1955
• Docket Number: No. 5-803,5-803
• Parties: FRANK LYON CO. et al., Appellants, v. Raymond OATS, Appellee. *
• Court: Supreme Court of Arkansas

Page 637

284 S.W.2d 637

225 Ark. 682

FRANK LYON CO. et al., Appellants, v. Raymond OATS, Appellee. ^*

No. 5-803.

Supreme Court of Arkansas.

Dec. 12, 1955.

Goodwin & Riffel, Little Rock, for appellant.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellee.

McFADDIN, Justice.

This is a Workmen's Compensation claim by appellee, a traveling salesman; and is resisted by appellant (employer) on the contention that the appellee's injuries did not arise 'out of and in the course of employment'. ¹ The Workmen's Compensation Commission made an award in favor of the claimant; the Circuit Court affirmed; and the employer has brought this appeal.

Mr. Oats was employed by Frank Lyon Company as a traveling salesman. His territory consisted of ten counties in Western Arkansas and three adjacent counties in Oklahoma. The eastern boundary of Mr. Oats' territory was a north and south line about forty miles west of the Town of Perry and approximately ninety miles west of Little Rock. Mr. Oats worked on a commission basis, furnishing his own car and paying his own expenses. Mr. Oats, a single man, resided with his parents in the Town of Perry, which is not in his territory. He would leave Perry Monday morning, drive westerly to his territory, work in the territory until Friday evening, and then return to Perry for Friday night. On Saturday morning he was required to go to Little Rock to attend a sales meeting at 9:00 o'clock at the Frank Lyon Company. That meeting closed at noon or thereafter; and then Mr. Oats was free to return to Perry for Sunday and be ready to resume working in his territory Monday. The fact that Mr. Oats stayed with his parents in Perry and returned there after each Saturday sales meeting was known to the Frank Lyon Company.

The injuries which Mr. Oats received, as herein involved, occurred on Saturday afternoon when his car went out of control as he was returning to Perry after having attended a sales meeting. The sole question is whether the injuries were received 'out of and in the course of employment'. It is conceded by appellant that Mr. Oats, after attending to some personal matters in Little Rock, was on the direct road returning from Little Rock to Perry at the time of the mishap; but appellant insists that Mr. Oats' presence at the sales meeting was required the same as was the attendance of the three other salesmen, who were residents of Little Rock; and that under the 'going and coming rule' the employee is not covered by the Workmen's Compensation Law, Ark.Stats. § 81-1301 et seq., for injuries occurring en route to the place of business. In addition to the cases from our own State--hereinafter to be mentioned--appellant cites such cases as Postal Telegraph Cable Co. v. Industrial Accident Comm., 1 Cal.2d 730, 37 P.2d 441, 96 A.L.R. 460; Covey-Ballard Motor Co. v. Industrial Comm., 64 Utah 1, 227 P. 1028; Lunde v. Congoleum-Nairn Co., 211 Minn. 487, 1 N.W.2d 606; and Dooley v. Smith Trans. Co., 57 A.2d 554, 26 N.J.Misc. 129.

For an injury to an employee to be compensable under the Arkansas Workmen's Compensation Law the injury must, among other essentials, arise 'out of and in the course of employment'; and as regards most workers, injuries sustained in going to or returning from work are held to be non-compensable. Such injuries are ruled out of compensability because of the 'going and coming rule'. ² In 58 Am.Jur. 723 this rule is stated:

'The hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment. This general rule is subject, however, in most jurisdictions, to certain well recognized exceptions which depend upon the nature, circumstances, and conditions of the particular employment, and the cause of the injury.'

There are many, many well recognized exceptions to the 'going and coming rule'; and employees coming within such exceptions are held to have received their injuries arising 'out of and in the course of employment'. We list only a few such exceptions:

(a) Where the employer furnishes a method of transportation. See Hunter v. Summerville, 205 Ark. 463, 169 S.W.2d 579; and Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S.W.2d 573.

(b) When the employee is injured while in close proximity to the place of business. See Bales v. Service Club, 208 Ark. 692, 187 S.W.2d 321.

(c) When the employee has a duty to perform for the employer while en route home.

(d) Another exception to the 'going and coming rule', and involved in the present case, is the so-called 'traveling salesman rule'.

In 58 Am.Jur. 730, in discussing 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, the text states:

'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.'

And under the traveling salesman exception employees have received compensation in a vast variety of situations. ³ In 71 C.J. 704 to 706 the holdings are summarized in this language:

'Outside workers, traveling salesmen or solicitors. Where the nature of an employee's work is such that it is actually, usually, or customarily performed while the employee is off the premises of the employer, harm which befalls such employee while he is engaged in his work away from the premises of the employer may be compensable as arising out of and in the course of the employment. * * * Harm sustained by a traveling representative of his employer may be compensable notwithstanding such harm is sustained while the employee is away from the premises of the employer.'

Professor Larson, in his treatise on 'Workmen's Compensation Law', says in Vol. 1, § 16.00:

'The most obvious application (exception to the 'going and coming rule') is, of course, to the traveling salesman. It is well established that his travels are within the course of his employment from the time he leaves home on a business trip until he returns, for the self-evident reason that the traveling itself is a large part of the job. * * *'

Schneider, in his text on 'Workmen's Compensation', Permanent Ed., Vol. 7, § 1665, summarized the holdings allowing traveling salesmen to recover in this language:

'Where the trip or attendance is one which the employer ordered or directed, or is for the sole benefit of the employer, or is to the mutual advantage of both the employer and his employee, compensation may be recovered.'

There are numerous cases involving factual situations somewhat similar or analogous to the case at bar, and in which the employee was allowed compensation. For some such, see Teshnor v. F. E. Compton & Co., 263 App.Div. 160, 32 N.Y.S.2d 266; State ex rel. McCarthy v. Dist. Court, 141 Minn. 61, 169 N.W. 274; Harby v. Marwell, 203 App.Div. 525, 196 N.Y.S. 729; Solar-Sturges Mfg. Co. v....