Hunter v. Summerville

• Decision Date: 01 March 1943
• Docket Number: 4-7031
• Citation: 169 S.W.2d 579,205 Ark. 463
• Parties: HUNTER v. SUMMERVILLE
• Court: Arkansas Supreme Court

169 S.W.2d 579

205 Ark. 463

HUNTER v. SUMMERVILLE

4-7031

Supreme Court of Arkansas

March 1, 1943

Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed.

Judgment affirmed.

J. H Lookadoo, for appellant.

John H Wright and Joseph Calloway, for appellee.

OPINION

ROBINS, J.

The appellee, George Summerville, a timber cutter employed by the appellant, Harry Hunter, received serious and disabling injuries in a wreck of the truck on which he was riding to his home from his work. He filed claim for compensation for his injuries with the workmen's compensation commission. The claim was resisted by Hunter and his insurance carrier who admitted that the appellee sustained the injury alleged--a compound fracture of the right tibia--but denied liability on the ground that the injury did not arise out of or in the course of his employment.

The commission made a finding of fact to the effect that the appellee "sustained an accidental injury arising out of and in the course of his employment"; that his earnings amounted to $ 12 per week; that the employee lived twelve or fifteen miles from the place of work; that he rode the employer's truck or one of the employer's sub-contractor's trucks each day in getting to work and had no other means of traveling to and from the place where he was cutting billets; that his employer intended to transport appellee to and from work when he hired him, and that he knew that the only way he could make use of appellee's services was to furnish transportation; that the evidence showed that all the workmen rode the employer's trucks or the sub-contractor's trucks indiscriminately; that there was no difference created in the legal situation by the appellee riding the employer's sub-contractor's trucks instead of the employer's trucks; and the commission awarded compensation to the appellee at the rate of $ 7.80 per week from the date of the injury to continue for the period of appellee's disability, and, in addition thereto, the expense of the necessary medical and surgical treatment. The employer and the insurance carrier appealed to the circuit court, where, on the record of the hearing before the commission, the circuit court sustained the award. From this judgment the employer and the insurance carrier have appealed.

The evidence before the commission disclosed that Summerville lived about fifteen miles from where the work was being carried on, and that his only means of getting to and from his work was by riding in one of the trucks that went into the woods for the purpose of hauling out billets of wood. Hunter was asked as to whether he had any arrangement with his men as to their transportation to and from work and he answered: "We had trucks going out there and if they wanted to ride they could." He further stated that on one of his trucks, which was driven by Hunter's brother, a little house had been constructed to keep the men out of the weather. Hunter had employed a sub-contractor named Wallace Jones to assist in getting out the pulp billets, and Jones' employees, as well as Summerville and other laborers, rode on Jones' truck. Hunter testified that no arrangement with Wallace Jones for Summerville or any others to ride on the Jones truck had been made, but he admitted that he was "taking care of Wallace Jones' insurance" under the Workmen's Compensation Law, and that enough money to pay the charges for compensation insurance on Jones' employees was retained by Hunter out of whatever amount was due Jones. Hunter stated that the custom was for his workmen to get on and off his brother's truck at a certain filling station. Appellee testified that there was nothing to prevent Hunter from knowing that at times appellee was riding home on Wallace Jones' truck, which passed some closer to Summerville's home than the truck driven by Hunter's brother, and that whether he got on board in the woods or at the filling station he sometimes rode Wallace Jones' truck if it happened to leave first. On the occasion of the appellee's injury, according to his testimony, he boarded Jones' truck out in the woods and rode with him to the spur track, where the appellee helped Jones unload the billets, and that the collision which caused the wreck occurred while he was traveling in the Jones truck on the road to the neighborhood in which appellee lived.

The only question to be decided in this case is whether or not appellee's injury arose out of and in the course of his employment, so as to entitle him to the benefits of the Workmen's Compensation Law. While they are of comparatively recent origin, laws providing for a fixed compensation for workmen injured as a result of their employment have been enacted in many states of the union, as well as in England, and the courts have frequently been called upon, in jurisdictions where these laws are in effect, to determine whether or not a particular injury of a workman arose out of and in the course of his employment. The results that have been reached by the courts in arriving at an answer to this question are by no means uniform. Some of the courts of last resort have held that an injury sustained while going to and from work is not such an injury as comes within the purview of a workmen's compensation act; others have restricted the liability for an injury of this kind to one suffered by employees while using the particular mode of transportation furnished by the employer; and, in another line of decisions, the rule has been announced that almost any accidental injury suffered by an employee while in the service of the master entitled the employee to compensation, regardless of whether the injury was sustained while the employee was on his master's premises or was going to and from work, or was making a trip for some other purpose. An example of the latter rather extreme view is found in the decision of the English court in the case of Richardson v. Morris, 7 B.W.C.C. 130. In that case it was shown that a laborer was engaged on a farm on an island about a mile from the mainland. He lived there, in the farmhouse, and was paid a yearly wage. He was recently married, but his wife remained with her parents on the mainland. One Sunday he wished to visit his wife, and his master ferried him over in his (the master's) boat. It was a rough day, and in attempting to land the man slipped, injured himself internally, and died soon afterwards. It was held that the accident arose out of and in the course of his employment.

In the case of Lamm v. Silver Falls Timber Company, 133 Ore. 468, 286 P. 527, 291 P. 375, the Oregon Supreme Court said: "This court, as well as other courts, has many times pointed out that the problem, whether an injury arises out of and in the course of the employment, is not to be determined by the precepts of the common law governing the relationship between master and servant; these ancient rules include the principles defining negligence, assumption of risk, fellow-servant doctrine, contributory negligence, etc. Likewise, all courts are agreed that there should be accorded to the workmen's compensation act a broad and liberal construction, that doubtful cases should be resolved in favor of compensation, and that the humane purposes which these acts seek to serve leave no room for narrow technical constructions. Further, the cases agree that these acts do not mean one thing when it is to the advantage of an employee so to maintain, and something else when an employer invokes the protection of the act in his favor. One of the purposes of the workmen's compensation acts is to broaden the right of employees to compensation for injuries due to their employment. Since these acts contemplate compensation for an injury arising out of circumstances which would not afford the employee a cause of action, the right to redress is not tested by determining whether a right of action could be maintained against the employer. Stark v. State Industrial Accident Commission, 103 Ore. 80, 204 P. 151. The word "employment," as used in such legislation, is construed in its popular signification. We quote from the decision of the Montana court in Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A. L. R. 964: 'The word "employment," as used in the workmen's compensation act, does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. . . . To say that plaintiff "ceased" working for the defendant is not equivalent to saying that he severed the relation of employer and employee'."

A similar conclusion was reached by the supreme court of Colorado in the case of The Industrial Commission et al. v. AEtna Life Insurance Company, 64 Colo 480, 174 P. 589, 3 A. L. R. 1336. In that case a claim had been made for compensation by the widow of Charles E. Lynch, who was a construction foreman employed by a contracting company to supervise the construction of a number of telephone exchanges in different points in the...