M. & W. Const. Co. v. Dependents of Bugg

• Decision Date: 01 May 1961
• Docket Number: No. 41830,41830
• Citation: 129 So.2d 631,241 Miss. 133
• Court: Mississippi Supreme Court
• Parties: M. & W. CONSTRUCTION CO. and Western Casualty Co. v. DEPENDENTS OF Horace Victor BUGG, Deceased.

Page 631

129 So.2d 631

241 Miss. 133

M. & W. CONSTRUCTION CO. and Western Casualty Co. v. DEPENDENTS OF Horace Victor BUGG, Deceased.

No. 41830.

Supreme Court of Mississippi.

May 1, 1961.

Cox & Dunn, Jackson, for appellants.

P. J. Townsend, Jr., Drew, Watkins & Eager, Jackson, for appellee.

RODGERS, Justice.

This is a workman's compensation case. An order was entered in the Second Judicial District of Bolivar County, Mississippi, affirming the order entered in the Workmen's Compensation Commission awarding the dependent children and dependent widow of deceased Horace Victor Bugg death benefits as provided by Section 6998-13, Code of 1942, and from that order this case has been appealed to this Court.

Mr. Horace Victor Bugg, the husband and father of the dependent claimants, was found dead under his panel truck on the 4th day of March 1959, about 5 o'clock in the afternoon. He was employed by the M. & W. Construction Company as a mechanic, but when the Construction Company was closed down on December 12, 1958, he was employed to look after the road equipment then parked on property leased from Mr. James L. Maxwell. Mr. Bugg was living in the Maxwell house and was required to remain on the property on '24 hour duty'. When the road equipment was first parked on the Maxwell property Mr. Bugg was required to do some repair work on the road machinery. He had two men to help him, but the employer Mr. H. M. Whitfield directed that this work be closed down. The deceased was then required to crank the motors on the equipment, and run them to keep them in shape, and he was also required to drag the road at times. This work as watchman continued for some time until along about the middle of February 1959, when Mrs. Bugg testified Mr. Whitfield came to the Maxwell property at a time when Mrs. Bugg was there and wanted to know if there was anything to be done to the trucks. Mr. Bugg told him that the trucks needed some minor repairs such as fixing the brakes and Mr. Whitfield told Mr. Bugg to 'get to work on the trucks' that if things worked out like he hoped, they would start back to work in two or three weeks. Mr. Whitfield, one of the partners of the M. & W. Construction Company, was asked about this conversation on the witness stand: 'Q. But you wouldn't say you didn't say that? A. No Ma'am I wouldn't say that.' Mr. Whitfield would not deny that he had seen the panel truck belonging to Mr. Bugg driven by Doc Gentry, and did not deny telling him to get the brakes fixed. Mr. Bugg had a panel truck that had unquestionably been used by him in furtherance of the master's business. He had used the truck to take his tools to heavy road equipment out on the road, and had time after time mended trucks on the road, by going to the disabled truck and taking his tools and parts with him in the panel truck. There is testimony by the defendants to the effect the deceased had no authority to use his personal truck for the employer, but there is also sufficient testimony in this record to establish that there had been an understanding between the foreman for the M. & W. Construction Company, whereby parts were purchased for the repair of deceased's truck by the M. & W. Construction Company, and the testimony is sufficient to show that Mr. Bugg filled his panel truck with gas and oil belonging to the employer so often as to indicate it was with the knowledge of the foreman of the M. & W. Construction Company. Moreover, this testimony is strengthened by the testimony of the foreman who admits that he did enter into an agreement with another employee and stated 'we didn't have but my truck down there, and we didn't have enough ways to go; and I talked to him and told him if he would let me use his car I would put gas in it.'

The appellant complains that the Workmen's Compensation Commission and the Circuit Judge committed error in awarding the dependents compensation for the following reasons: (1) The accident and resulting death of employee Bugg did not arise out of and in the course of Bugg's employment. (2) The activity out of which the accident arose was prohibited by M. & W. Construction Company and in any event was beyond the area of risk assumed by the employer.

The appellant cites: Persons et al. v. Stokes, 222 Miss. 479, 76 So.2d 517, and Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381, 59 So.2d 294, as authority for the rule that 'If a servant steps aside from the master's business for some purpose of his own disconnected from his employment, the relationship of master and servant is temporarily suspended and 'this is so no matter how short the time, and the master is not liable for his acts during such time." [222 Miss. 479, 76 So.2d 519].

It is the contention of the appellees that the M. & W. Construction Company did not authorize the use of the panel truck in the business of the M. & W. Construction Company, and therefore the repair of the panel truck did not 'arise out of' his employment. It is also contended that the panel truck was a danger brought to the job by the employee and that employer was not liable for an injury caused by the panel truck, under the doctrine of imported danger, mentioned by this Court in Earnest v. Interstate Ins. Co., 238 Miss. 648, 119 So.2d 782.

Section 6998-04, Code of 1942, provides that compensation shall be payable for disability or death from injury 'arising out of and in the course of employment'. A compensable injury must, therefore, not only arise within the space and limits of the employment, but also in the course of an activity related to the employment. An activity, however, is related to the employment if it carries out the employer's purposes or advances his interest, directly or indirectly. It has been pointed out that if a servant under the common law 'steps aside from the master's business for some purpose of his own disconnected from his employment, the relationship of master and servant is temporarily suspended.' Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229, 230; 58 Am.Jur., Workmen's Compensation, Section 211, pp. 718-721. This common-law rule has been used as a part of the workmen's compensation opinions in determining the meaning of the phrase 'to arise out of the employment'. An injury arises out of the employment when there is a causal connection between it and the job. Earnest v. Interstate Ins. Co., supra.

When it has been shown that an employee is on duty for 24 hours or is a resident employee, the entire period of his presence is deemed included in the 'course of his employment'. See Section 24.00 of Larson's Workmen's Compensation, p. 372.

In 58 Am.Jur., Workmen's Compensation, Sec. 235, the textwriter points out that an injury is not necessarily rendered noncompensable by the fact that at the time of its occurrence the employee was engaged in the performance of some act for the benefit of himself or some third person, since such an act may in many instances be so related to or connected with the employment as to make it a reasonable incident thereof.

The appellant contends that the automobile belonging to the deceased was brought upon the leased premises of the employer and was therefore an imported hazard, and cites the cases of Persons v. Stokes, 222 Miss. 479, 76 So.2d 517, and Earnest v. Interstate Ins. Co., 238 Miss. 648, 119 So.2d 782. These cases were based on employees having transported deadly weapons to and upon the property of the employer. This Court pointed out the rule mentioned in Larson's Workmen's Compensation, Sec. 12.31, in the Earnest v. Interstate Ins. Co. case, supra. In the following Section 12.32 Mr. Larson says: 'The principle is relatively easy to accept when the imported risk takes the form of an unequivocally 'dangerous instrumentality", but in tort law it is not long before the 'dangerous instrumentality' category is extended to include automobiles. Mr. Larson points out that there are two lines of authority on the subject of an automobile as an...