Harlan Collieries Co. v. Shell

• Decision Date: 09 March 1951
• Parties: HARLAN COLLIERIES CO. v. SHELL et al. HARLAN COLLIERIES CO. v. ATWOOD et al.
• Court: United States State Supreme Court — District of Kentucky

Page 923

239 S.W.2d 923

HARLAN COLLIERIES CO. v. SHELL et al.

HARLAN COLLIERIES CO. v. ATWOOD et al.

Court of Appeals of Kentucky.

March 9, 1951.

Rehearing Denied June 15, 1951.

James Sampson and Edward G. Hill, Harlan, for appellant.

Doyle & Doyle, Harlan, W. R. Lav, Pineville, for appellees.

CLAY, Commissioner.

This is a Workmen's Compensation case. Walter Shell and Robert Atwood, employees of appellant, were killed in an accident, and their dependents were awarded compensation. The Board's award was confirmed by the Circuit Court.

The sole and significant issue is whether or not compensation is payable when an employee on his way home from work is injured or killed on the property of the employer, as the result of a defective condition of a vehicle, not furnished or controlled by the employer, in which he is being transported.

The accident occurred on a road constructed and maintained by appellant on its own premises. It extended from appellant's coal mine on a mountain to a public highway, and was used by employees and others having business with the Company. The two fatally injured workmen were riding in a truck owned and operated by one Paterson, who was not an employee of appellant. The truck ran off the road because of some mechanical defect in the steering gear.

Paterson made daily trips over this road transporting employees to and from the highway under an arrangement made with them through their union. He was paid a consideration by the men for this service. He was not paid by the employer, nor did the employer exercise any control over him or his truck. It was not necessary that the employees avail themselves of this means of transportation, as they could walk from work down the roadway, or use other pathways leading from the mine.

To be compensable under Kentucky law, an injury or death must be sustained or result from an accident 'arising out of and in the course of * * * employment.' KRS 342.005(1). As stated in A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, page 442, 61 S.W.2d 1, page 3: 'The words 'arose out of' the employment as used in the statute refer to the cause of the accident, and the term 'in the course of the employment' to the time, place, and circumstances under which it occurred.'

It is evident there must be some causal relationship between the accident and the employment. In January-Wood Co. v. Schumacher, 231 Ky. 705, 22 S.W.2d 117, the employee, a night watchman, while on duty was shot and killed by a man who had a private, personal animosity toward him. We denied compensation. The opinion states, page 708 of 231 Ky., page 119 of 22 S.W.2d: 'The fundamental principle of liability, it seems to us, is that the injury sustained was such as in the light of experience might reasonably have been foreseen as a result of the service and nature of duties performed * * *, or the cause must have had its origin in a risk connected with the employment and the injury have flowed from that source as a rational consequence.'

In Billiter, Miller & McClure v. Hickman, 247 Ky. 211, 56 S.W2d 1003, an employee was killed when he fell off a vehicle on his way to work. At the time he was riding with the employer's foreman and was not far from the place he left off work the evening before. Compensation was denied on the ground that the employee was not acting in the 'course of his employment.'

In Draper v. Railway Accessories Co., 300 Ky. 597, 189 S.W.2d 934, the employee was struck by an engine on railroad tracks near the point where he was engaged in dismantling obsolete cars. He had quit his regular work, and was on the way home. He had a choice of two routes and had selected the one down the railroad. Even though it appeared the place of the accident was on the general premises where work was being performed by his employer, we held the accident did not arise out of the employment. It was said that even though the employee is on the employer's premises, this does not ipso facto fasten liability on the latter. The opinion quotes, at page 601 of 300 Ky., at page 937 of 189 S.W.2d, from Schneider's Workmen's Compensation Law, Vol. 6, Supp. p. 1264, as follows: "The basis of the 'going and coming' rule, is that, though broadly speaking the injury is incidental to the employment, compensation under the Act is dependent upon the fact that the employee is engaged in some service growing out of his employment, and that an employee in merely coming to or going from his work is not rendering any such service. He is exposed to risk, not as an employee, bur rather as a member of the general public and the Act is not intended to compensate for injuries resulting from such risks."

In A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, 61 S.W.2d 1, the employee had been ill during his working hours on the job. After quitting time he started to his automobile, became dizzy, fell and broke his leg. The injury was held compensable on the ground that it was proximately caused by the employee's dizziness, which directly resulted from over-exertion in the performance of his work. The opinion states at page 442 of 249 Ky., at page 3 of 61 S.W.2d: 'An employee on the master's premises, to begin, or to engage in, his work, or at the close of the day's work in leaving the premises, is, within the meaning of the compensation act, in the course of his employment. The going to and returning from work is not limited by the exact time he reaches the scene of his labor and begins work, or when he ceases it, but includes a reasonable time, space, or opportunity, both before and after, while he is at or near his place of employment.'

In Wilson Berger Coal Co. v. Brown, 223 Ky. 183, 3 S.W.2d 199, the employee was ruptured when he fell over a stone in a road maintained by the employer for its own convenience and that of its employees. In that case the opinion states the broad rule: that an injury is compensable if it occurs while an employee is going to or returning from his place of work along a road on the employer's premises, built and maintained for his use. We do not think that such a rule is generally accepted, and its full implications...