Gardner v. Industrial Indem. Co., 7424

• Decision Date: 01 July 1968
• Docket Number: No. 7424,7424
• Citation: Gardner v. Industrial Indem. Co., 212 So.2d 452 (La. App. 1968)
• Parties: Elzie GARDNER, Administrator of the Estates of his minor sons, Donald Zay Gardner and Dennis Gardner v. INDUSTRIAL INDEMNITY COMPANY and Bechtel Corporation.
• Court: Court of Appeal of Louisiana — District of US

Page 452

212 So.2d 452

Elzie GARDNER, Administrator of the Estates of his minor sons, Donald Zay Gardner and Dennis Gardner v.INDUSTRIAL INDEMNITY COMPANY and Bechtel Corporation.

No. 7424.

Court of Appeal of Louisiana, First Circuit.

July 1, 1968.

Arthur Cobb, Baton Rouge, for appellant.

Maurice J. Wilson of Breazeale, Sachse & Wilson, Baton Rouge, for appellee.

Before LANDRY, REID and BAILES, JJ.

LANDRY, Judge.

The trial court rejected the claims of plaintiffElzie Gardner who sought workmen's compensation benefits for his two minor sons, Donald Zay Gardner and Dennis Gardner, for injuries sustained in an automobile accident which allegedly occurred within the scope of their employment as apprentice pipefitters by defendantBechtel Corporation(Bechtel).

The sole issue presented in this litigation is one of law, namely, whether an employee who receives a daily travel payment of $1.00 is within the course and scope of employment while traveling to and from his place of employment.In the court below both plaintiff and defendants filed motions for summary judgment.The motion of Bechtel and its insurer, Industrial Indemnity Company, was sustained and plaintiff's suit dismissed.Plaintiff has appealed assigning as error the action of the trial court in sustaining defendants' motions and rejecting and dismissing plaintiff's own similar motion.We find no error in the judgment of the trial court and affirm the decree rendered below.

The pleadings and affidavits reveal the salient facts are uncontroverted to the effect that plaintiff's minor sons resided in or near Denham Springs, Livingston Parish, and were employed by Bechtel at a construction site in Convent, St. James Parish.Said employees furnished their own mode of transportation from their home to the work site, which was usually by means of privately owned automobiles.In addition to their regular hourly wages, said employees were each paid the sum of $1.00 daily as 'travel payment' pursuant to a contract between Bechtel and the union which represented plaintiff employees.The pertinent portion of the contract, dated July 20, 1965, reads as follows:

'It is agreed between the United Association(the labor union) and the National Construction Association members (including Bechtel) present at this meeting that they will recommend payment to industrial clients and state the $1.00 was created to relieve manpower shortage.When shortage of manpower ceases to exist the NCA will meet with the U.A. with a view of recommending discontinuance of the $1.00 per day travel payment.

In the meantime this $1.00 per day will not be increased or decreased unless by agreement of both parties.'

It is conceded that the $1.00 travel payment thus provided for was received by plaintiffs only on those days that they actually worked on the Bechtel job.Additionally, it is undisputed that said travel payment was not received by plaintiffs on the day of the accident inasmuch as they were injured en route to Convent, Louisiana, and did not report for work that day.

Succinctly stated, appellant contends that the payment of any 'travel time or payment' by an employer is sufficient to bring the employee within the course and scope of his employment while traveling to and from work.In so contending, counsel relies upon certain observations of the eminent writer Wex Malone in his work on Louisiana Workmen's Compensation Law and Practice and certain authorities of our own as well as other jurisdictions.

On the contrary, defendants argue that the mere payment of travel time to an employee who furnishes his own means of transportation to and from his place of employment does not per se place the employee within the course and scope of his employment while traveling to and from his work.Defendants further contend that for payment of travel allowance for transportation to and from work to place an employee within the scope of his employment, such payment must be an incident to or a concomitant of the contract of hiring.

In resolution of the stated controversy, we must keep in mind certain well established principles which have been evolved by our jurisprudence.

In general, for an injury to be compensable under our Workmen's Compensation Law, LSA-R.S. 23:1021 et seq., it must occur during the course of the employee's employment, which means it must occur within working hours.Additionally, the accident producing injury must transpire within the scope of the employment which requires that it result from a risk to which the employee is necessarily subjected by virtue of the nature of his work.Peterson v. Williams, La.App., 175 So.2d 364.

Ordinarily, an employee injured while going to or returning from work is not entitled to compensation.Injuries thusly occurring are considered as not arising during the course of the employment.Hay v. Travelers Insurance Company, La.App.106 So.2d 791.This general rule is, however, subject to certain well recognized and established exceptions.

One such exception exists in those occasions wherein the employee is furnished transportation by his employer as an incident to or concomitant of the employment.In such instances the employee injured while going to and from work is deemed within the scope and during the course of his employment and entitled to compensation.Griffin v. Catherine Sugar Co., Inc., 219 La. 846, 54 So.2d 121.Williams v. Travelers Ins. Co. of Hartford, Conn., La.App., 19 So.2d 586;Callihan v. Firemen's Fund Indemnity Company, La.App., 110 So.2d 758.

It appears our courts have interpreted the phrase 'incident to or concomitant of the employment', when considering cases of this nature, to mean that the employer has interested himself in the transportation of his workmen because their actual transportation serves some useful purpose of the employer.In this connection we note the following language appearing in Griffin v. Catherine Sugar Co., Inc., supra:

'We think the record unmistakably shows the transportation offered the laborers by the defendant in this case was an incident to the employment, in that it would not have been furnished but for the employment.Stated in another way, had the transportation not been furnished, the defendant would have been unable to get the necessary help to harvest its crop.'

However, after considering numerous cases which apply or follow the rule announced in Griffin v. Catherine Sugar Co., Inc., we conclude the scope thereof is not necessarily limited to instances wherein transportation would not have been furnished but for the employment.Rather, we find the rationale of the jurisprudence to be that whenever the employer undertakes to furnish transportation as such or allow travel expense in lieu thereof, the employee is within the course of his employment while traveling to and from work.

We also find that this view accords with the unquestioned majority view, the rationale of which is best illustrated by the following language appearing in Tavel v. Bechtel Corporation, 242 Md. 299, 219 A.2d 43, which we quote with approbation:

'In passing on questions of whether an employee, injured while coming to or going from the place where he worked, was injured in the course of his employment, this Court has endeavored to keep in mind both the legislative mandate that the Workmen's Compensation Act shall be so interpreted and construed as to effectuate its general social purpose and the concomitant consideration that workmen, like other members of the general public, are not insured against the common perils of life.'

We also cite with approval the following remarks on the subject matter contained in Westinghouse Electric Corp. v. Industrial Acc. Com'n., 239 Cal.App.2d 533, 48 Cal.Rptr. 758:

'The established rules which govern the compensability of injuries sustained by an employee while going to or returning home from work are set forth in Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 35, 215 P.2d 736, 737, as follows: 'It is the general rule that injuries sustained by an employee going to or returning from work are not compensable under the Workmen's Compensation Act, § 3201 et seq.The rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work.California Casualty...