Messenger v. Sage Drilling Co.

• Decision Date: 03 May 1984
• Docket Number: No. 55889,55889
• Citation: 680 P.2d 556,9 Kan.App.2d 435
• Parties: Gary Edward MESSENGER, Deceased, Appellee, v. SAGE DRILLING COMPANY and Hartford Accident and Indemnity, Appellants.
• Court: Kansas Court of Appeals

Page 556

680 P.2d 556

9 Kan.App.2d 435

Gary Edward MESSENGER, Deceased, Appellee, v. SAGE DRILLING COMPANY and Hartford Accident and Indemnity, Appellants.

No. 55889.

Court of Appeals of Kansas.

May 3, 1984.

Review Denied June 25, 1984.

Syllabus by the Court

1. K.S.A.1983 Supp. 44-508(f) is a codification of the long standing "going and coming" rule.

2. One very basic exception to the "going and coming" rule applies when the operation of a motor vehicle on the public roadways is an integral part of the employment or is inherent in the nature of the employment or is necessary to the employment, so that in his travels the employee was furthering the interests of his employer.

3. Whether an accident arises out of and in the course of the worker's employment depends upon the facts peculiar to the particular case.

4. In a workers' compensation case, the record is examined, and it is held, that where (1) employees are required to travel and to provide their own transportation, (2) the employees are compensated for this travel, and (3) both the employer and employees are benefited by this arrangement, then such travel is a necessary incident to the employment, and there is a causal relationship between such employment and an accident occurring during such travels; thus, the "going and coming" rule, K.S.A.1983 Supp. 44-508(f), does not apply, and the trial court correctly awarded compensation.

Ken W. Strobel, of Williams, Larson, Strobel, Estes & Malone, Dodge City, for appellants.

Jerry L. Soldner, of Soldner & Wheeler, Garden City, for appellee.

Before FOTH, C.J., and ABBOTT and MEYER, JJ.

MEYER, Judge:

Respondent Sage Drilling Company and its insurance carrier Hartford Accident and Indemnity (appellants) appeal from the district court's finding that the death of Sage's employee, Gary Messenger (Messenger), in a truck accident while on the way home from a distant drill site arose out of and within the scope of his employment.

Appellants raise only the scope of employment issue. Appellants do not address the issue of the crew's deviation while en route home. Instead, their brief focuses on the Kansas statutory "going and coming" rule, which states:

"The words 'arising out of and in the course of employment' as used in the workmen's compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer." K.S.A.1983 Supp. 44-508(f).

Appellants claim this statute blocks any recovery by Messenger's dependents.

While commentators have noted that the Kansas "going and coming" rule is restrictive [1 Larson, Workmen's Compensation Law § 15.42 (1982); Wells and Looney, Survey of Kansas Law: Workmen's Compensation, 18 Kan.L.Rev. 478, 482-3 (1970) ], it must be recognized that the rule does not apply in all cases where the claimant may be described as traveling to or from work.

"The rule excluding off-premises injuries during the journey to and from work does not apply if the making of that journey, or the special degree of inconveniences or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed." 1 Larson, § 16.00.

The court in Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 382-3, 416 P.2d 754 (1966), had this to say in regard to the above-mentioned statute:

"The statute here under consideration is simply a codification of the 'going and coming' rule universally developed by courts in construing Workmen's Compensation Acts. It has been a part of our workmen's compensation law since 1917. (L.1917, Ch. 226, Sec. 2.) It is a legislative declaration there is no causal relation between an injury and the business which employs another, that is, the injury does not arise out of the nature, conditions, obligations or incidents of the employment, while the employee is on his way to assume his duties or after leaving his duties, which is not proximately caused by the employer's negligence. In the language of the statute, such an injury does not arise out of and in the course of the employment. While the statute does not define the place where the employee is 'to assume the duties of his employment,' our decisions are to the effect it is a place where an employee may reasonably be during the time he is doing what a person so employed may reasonably do during or while the employment is in progress. They require that the employee be engaged in some activity contemplated by and causally related to the employment. (Sedlock v. Mining Co., 98 Kan. 680, 682, 159 Pac. 9; Rush v. Empire Oil & Refining Co., [140 Kan. 198, 34 P.2d 542]; Harrison v. Lozier-Broderick & Gordon, [158 Kan. 129, 145 P.2d 147]; Jones v. Lozier-Broderick & Gordon, [160 Kan. 191, 160 P.2d 932]; Murray v. Ludowici-Celadon Co., [181 Kan. 556, 313 P.2d 728]; Madison v. Key Work Clothes, [182 Kan. 186, 318 P.2d 991].)" Emphasis added.

Kansas has long recognized one very basic exception to the "going and coming" rule. That exception applies when the operation of a motor vehicle on the public roadways is an integral part of the employment or is inherent in the nature of the employment or is necessary to the employment, so that in his travels the employee was furthering the interests of his employer.

The Kansas courts have acknowledged that travel can itself be a substantial part of employment. In some cases, travel is an intrinsic part of the job [see Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 P. 536 (1930) (traveling salesman) ]; in others, custom or usage has made travel an element of the employment, and the courts have held that the traveling furthered the purposes of the employer and so arose out of and within the scope of employment.

In Bell v. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 (1953), compensation was also awarded. Bell is very similar to the case at bar. In Bell the deceased had been engaged as the driller on the drilling crew. He was contacted concerning the job on one day and was told to report to the well site with his crew at 8:00 a.m. the following morning. He set out to locate the three roughnecks needed to complete his crew. While traveling on the highways, he died in an auto wreck. The district court's findings that it was the custom in the business that the driller hire and procure his own crew, and that the deceased was expected to do so, were affirmed. Also affirmed were findings that the deceased was engaged in this obligatory service at the time of his death, and that this service was beneficial to both deceased and his employer. These findings were the basis for the district court's conclusion that the death arose out of and in the course of deceased's employment; this conclusion was also affirmed.

In Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973), compensation was allowed where the death was from a car accident occurring on a trip from an oil lease owned by one employer to that of another. The court in Newman held:

"Whether an accident arises out of and in the course of the workman's employment depends upon the facts peculiar to the particular case." 212 Kan. 562, Syl. p 3, 512 P.2d 497.

Thus, the question of whether the "going and coming" rule applies must be addressed on a case-by-case basis. And see also Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841 (1941), where the death of the company president and "tool pusher" resulting from a car accident while traveling between job sites was held to be compensable.

A contrary result was reached in LaRue v. Sierra Petroleum Co., 183 Kan. 153, 325 P.2d 59 (1958). In that case, an oil well crew member died in a car accident on the way home from a drilling site. The case is...