Ry. Express Agency Inc v. Lewis

• Decision Date: 18 June 1931
• Citation: 159 S.E. 188
• Court: Virginia Supreme Court
• Parties: RAILWAY EXPRESS AGENCY, Inc. v. LEWIS et al.

159 S.E. 188

RAILWAY EXPRESS AGENCY, Inc.

v.LEWIS et al.

Supreme Court of Appeals of Virginia.

June 18, 1931.

EPES, J., dissenting.

Error to Industrial Commission.

Proceeding under the Workmen's Compensation Act by Myrtle Hall Lewis and others, opposed by the Railway Express Agency, Inc. To review an award by the Industrial Commission, the employer brings error.

Affirmed.

Argued before PRENTIS, C. J., and EPES. HUDGINS, GREGORY, and BROWNING, JJ.

Hunton, Williams, Anderson & Gay, of Richmond, for plaintiff in error.

Aubrey R. Bowles, Jr., of Richmond, for defendants in error.

HUDGINS, J.

The Railway Express Agency, Inc., complains of an award made against it by the Industrial Commission. The commission found the following facts:

M. C. Lewis was employed as a truck driver in the city of Richmond to receive and deliver packages sent and to be sent by the Railway Express Company. In the morning hours his duties required him to be on the streets in the area between East Foushee and Eleventh streets, but in the afternoon he was subject to call to other parts of the city, depending upon the exigencies of the day. While at Main Street Station on the afternoon of May 17, 1930, Lewis informed his immediate superior that his wife was sick and asked permission to take her some chickens. To this request no objection was made. Before leaving Main Street Station, he was instructed to call for a package at Third and Du Val streets, which is several blocks north of Broad street.

At the termination of his day's work, Lewis was required to deliver packages to his employer's office in Broad Street Station, check out for the day, and store the truck for the night in the garage located at Sheppard and Clay streets. He purchased the chickens near Second and Main streets, carried them to 805 West Main street to be dressed, made his call for the package on Du Val street, called back at West Main street for the dressed chickens, delivered them at his home at 2317 Stuart avenue, left his home for Broad Street Station, and was killed in a collision with an automobile on Park avenue, several blocks south of a direct route from Third and Du Val streets to Broad Street Station. At the time of the accident, a number of packages destined for delivery were found in the truck.

The plaintiff in error states the issue in the following language: "The sole question at issue is whether an accident occurring when an employee is returning to his work after having deviated therefrom to engage ina personal errand Is entitled to compensation."

One of the authorities cited to support the contention that the dependents of the deceased are not entitled to recover is Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 129 S. E. 330. In that case the court said that, to the general rule that an injury occurring to an employee going to and from the place where his work is to be performed is not compensable, there is an exception, namely, when the means of transportation is furnished by the employer, or the time consumed is included in the wages. Here the truck driven by the employee was owned by the employer and the-time consumed in the deviation was paid for by it.

A more accurate statement of the question presented by the record is, Is an injury compensable where an employee whose duties require him to operate a truck upon the streets of a city and is permitted to select what streets he will use, with the consent of his employer, deviates from a direct route to perform a personal mission, completes the mission, starts to the point of delivery designated by his employer, and is injured before reaching his destination, or a street in the direct course thereto?

The plaintiff in error contends that the award of the Industrial Commission is wrong because the accident did not arise out of and in the course of the employment within the meaning of the Workmen's Compensation Act (Acts 1918, c. 400, as amended), and in support of his contention cites the following authorities: Industrial Commission of Ohio v. Ahern, 119 Ohio St. 41, 162 N. E. 272, 59 A. L. R. 367: Zenker v. Zenker & Fidelity & Casualty Co. of N. Y., 93 Pa. Super. Ct. 255; Mary M. Taylor's Case, 126 Me. 450, 139 A. 478; Vitas v. Grace Hospital Society, 107 Conn. 512, 141 A. 649; Mueler Construction Co. v. Industrial Board. 283 111. 148. US N. E. 102S, L. R. A. 1918F, 891, Ann. Cas. 1918E, 80S; Vickers v. Alabama Power Co., 218 Ala. 107, 117 So. 650.

A study of the above cases shows that the principles announced therein are not applicable to the facts in the case at bar.

In Mountain v. Industrial Accident Commission of California, 92 Cal. App. 176, 267 P. 913, the employee was sent in an automobile to get a suitcase for his employer. After procuring the suitcase, instead of returning in a direct course to the place designated by the employer, he deviated from such course by going seven blocks in an opposite direction for the purpose of getting a package of cigarettes for himself. While returning from the place he bought the cigarettes and four blocks before reaching a direct course back to his point of destination, he was injured. Compensation was denied. The court stated that the authorities from other jurisdictions were not harmonious, but previous decisions of the California court sustained the ruling. In that case the deviation from the direct route was made without the consent of the employer, while in the present case the commission found as a fact that the consent of the employer had been obtained.

Matter of Marks' Dependents v. Gray, 251 N. Y. 90, 167 N. E. 181, 183. The injured employee was helper to a plumber. His home and place of business were Clifton Springs. His wife went to visit relatives in a nearby town, and he had promised at the close of the day's work to go for her in the family car. His employer, on learning this fact, requested him to take his tools and fix a faucet in the town where his wife was visiting. This was a trifling job, calling for fifteen or twenty minutes' work. On the way to get his wife and when only about a mile from his home, he was injured on the highway in an automobile wreck and died. The court held that the hazards of the highway were unrelated to the service:

"In such circumstances we think the perils of the highway were unrelated to the service. We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. We cannot draw that inference from the record now before us. On the contrary, the evidence is that a special trip would have been refused since the pay would be inadequate. The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clawson v. Pierce-Arrow Motor Car Co., 231 N. Y. 273, 131 N. E. 914. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk."

The service to the master in the case under consideration was the sole reason for the journey from the employee's home to the Broad street terminal.

The facts in the case of Dreyfus & Co. v. Meade, 142 Va. 567, 129 S. E. 336, 338, reveal that the duties of Meade, a night watchman, required him to be on the premises, or immediately adjacent thereto. He was injured some two blocks from the premises while crossing the street on a personal mission. Meade, in the performance of his duties, was not required to expose himself to the risks or hazards of street travel, and, when he left the premises and attempted to cross thestreet on a purely personal mission and was injured, the injury was the result of a risk not incident to, growing out...