Ratliff v. Epling

• Decision Date: 25 March 1966
• Parties: Ruth Coleman RATLIFF, Appellant, v. James E. EPLING, Jr., and Bill Coleman, d/b/a C & E Coal Company, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 43

401 S.W.2d 43

Ruth Coleman RATLIFF, Appellant, v. James E. EPLING, Jr., and Bill Coleman, d/b/a C & E Coal

Company, et al., Appellees.

Court of Appeals of Kentucky.

March 25, 1966.

Dan Jack Combs, Ronald W. May, Pikeville, for appellant.

Baird & Hays, Pikeville, for appellees.

CLAY, Commissioner.

Appellant is seeking workmen's compensation death benefits. The Board found the employee's death did not arise out of and in the course of his employment. This order was confirmed by the circuit court. The case has been before us earlier on a procedural question. Epling v. Ratliff, Ky., 364 S.W.2d 327. A related case is Ratliff v. Big Sandy, Ky., 389 S.W.2d 911, wherein the facts are detailed.

The deceased was a coal miner and his employer was engaged in a deep mining operation. The employer's lease encompassed a substantial area west of the drift mouth where the employee worked. This area had been auger-mined by another company not here involved. The auger mining had created a 'high-wall', ranging from 18 to 25 feet in height, above a shelf along which a roadway extended to the drift mouth. This roadway was customarily used by employees going to and from their work there. (Apparently it was the only means of ingress and egress.) It was not well-defined but the route extended generally along the shelf, which had substantial width.

The employee had quit work for the day. He planned to ride home with a fellow employee whose car was parked near the drift mouth. The car would not start. While the driver went to secure assistance, the employee took a box and expressed the intention of gathering loose coal, for his personal use, along the face of the 'high-wall'. When he was about 173 feet from the drift mouth this embankment caved in upon him, causing his death. The accident happened approximately one-half hour after he had quit work.

Appellant contends the employee was on his employer's premises and that since the accident happened within a reasonable time after quitting work, while he was on his way home, it should be held that he was still in the course of his employment. We are confronted with two very serious problems involving the application of the 'Going and Coming' rule and the matter of 'Deviation' from the course of employment.

The 'Going and Coming' rule involves the question of whether or not, and under what conditions, an employee is covered by workmen's compensation when on his way to or from the place where he actually performs the duties connected with his employment. This problem has vexed the courts for years and it must be conceded that governing principles have not been consistently applied by our Kentucky cases. It may be generally stated that (in the absence of the performance of some employment duties) the employee is not covered if he is not on the premises of the employer. See Larson's Workmen's Compensation Law, Vol. 1, section 15.00 (page 195). State Highway Commission v. Saylor, 252 Ky. 743, 68 S.W.2d 26; Scott Tobacco Co. v. Cooper, 258 Ky. 795, 81 S.W.2d 588; W. T. Congleton Co. v. Bradley, 259 Ky. 127, 81 S.W.2d 912; Gray v. W. T. Congleton Co., 263 Ky. 716, 93 S.W.2d 829; Miracle v. Harlan Wallins Coal Corporation, 311 Ky. 169, 223 S.W.2d 738.

On the other hand, we have not adopted the converse rule (which generally prevails) that the employee is automatically covered simply because the accident occurred on the employer's premises. See Draper v. Railway Accessories Co., 300 Ky. 597, 189 S.W.2d 934; Harlan Collieries Co. v. Shell, Ky., 239 S.W.2d 923; Harlan-Wallins Coal Corporation v. Stewart, Ky., 275 S.W.2d 912; Johnson Brothers Lumber Company v. Hood, Ky., 330 S.W.2d 929; Bickel v. Ford Motor Company, Ky., 370 S.W.2d 193. The theory of some of those cases was that the accident was not covered, even though occurring on the employer's premises, because the employee was not exposed to an 'industrial hazard'. Since our cases have not uniformly used this criterion (which is a rather elusive one at best), and since eminent authorities do not consider it relevant, we no longer think it should be controlling.

We are not willing, however, to accept the boundary line of the employer's property as the proper point at which to differentiate between liability or nonliability. We must take this position because, particularly in the coal mining industry, extensive acreage may be encompassed within the employer's property or premises and it would be unrealistic to conclude that the employee was in the course of his employment at any and all times when he was within those boundaries.

The Pennsylvania courts have taken what appears to be a fairer and more practical view of what constitutes 'premises'. In Young v. Hamilton Watch Co., 158 Pa.Super 448, 45 A.2d 261, a distinction was made between the 'premises' and the 'property' of the employer. It was held that where the injury did not occur on the 'operating premises' of the employer, compensation would be denied. ¹ The same general principle was followed in Connecticut (Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244, 38 A.2d 801) and Tennessee (Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386).

The 'operating premises' concept is somewhat related to the idea expressed by this Court in Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, where the test applied was: 'work connected activity'. If we interpret 'work connected activity' as including 'work connected place', we really reach the concept of 'operating premises'. See Cooper, 'Workmen's Compensation--The 'Going and Coming' Rule and Its Exceptions in Kentucky', 47 Ky.L.J., pages 420, 424. (This might be considered a justifiable extension of the 'industrial hazard' theory.)

The 'operating premises' principle appears implicit in the following cases: Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308; Big Elkhorn Coal Co. v. Burke, 206 Ky. 489, 267 S.W. 142; Wilson Berger Coal Co. v. Brown, 223 Ky. 183, 3 S.W.2d 199; Stearns Coal & Lumber Co. v. Smith, 231 Ky. 269, 21 S.W.2d 277; Black Mountain Corporation v. Vaughn, 280 Ky. 271, 132 S.W.2d 938; Clear Fork Coal Company v. Roberts, Ky., 279 S.W.2d 797; King v. Lexington Herald-Leader Co., Ky., 313 S.W.2d 423.

The cases of United States Steel v. Isbell, Ky., 275 S.W.2d 917, and Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, appear inconsistent with this concept.

Two cases involving injuries on a parking lot seem directly in conflict. Compensation was allowed in A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, 61 S.W.2d 1, and denied in Bickel v. Ford Motor Company, Ky., 370 S.W.2d 193. In the Pennsylvania case we have above cited (Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261) it was held that a parking lot (located on the property of the employer, though not contiguous with the work area) was not a part of the 'operating premises'. Since we reached the same conclusion in the Ford Motor Company case (where the lot was adjacent to the 'operational premises'), Barnhill in effect has been overruled.

In our opinion the 'operating premises' test is a fair one and most consistent with the trend of our decisions, and we hereby adopt it. Applying it to this case, we find that the roadway area extending at least as far as the point opposite which the employee was killed (173 feet from the drift...