Sullivan v. Industrial Commission of Utah

• Decision Date: 04 May 1932
• Docket Number: 5119
• Citation: 79 Utah 317,10 P.2d 924
• Court: Utah Supreme Court
• Parties: SULLIVAN v. INDUSTRIAL COMMISSION OF UTAH et al

10 P.2d 924

79 Utah 317

SULLIVAN v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5119

Supreme Court of Utah

May 4, 1932

Proceedings under the Workmen's Compensation Act by Murray Sullivan, opposed by D. P. Abercrombie, receiver of the Salt Lake & Utah Railroad Company, employer, and the Columbia Casualty Company, insurer. To reverse an order of the Industrial Commission denying claimant compensation claimant brings an original proceeding in the Supreme Court.

AFFIRMED.

Dey Hoppaugh, Mark & Johnson, of Salt Lake City, for plaintiff.

Geo. P. Parker, Atty. Gen., and Bagley, Judd & Ray, of Salt Lake City, for defendants.

FOLLAND, J. J. W. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

Plaintiff by this review seeks to reverse an order of the Industrial Commission of Utah denying compensation for injuries suffered by him at Poughkeepsie, N.Y. The Industrial Commission concluded, after a hearing and the making of findings, that the accident from which the injuries to plaintiff resulted did not arise out of or occur to plaintiff while he was engaged in the course of his employment. The only question for review is whether this conclusion was justified by the law and the evidence. The findings of the commission state the facts fairly and adequately as follows:

"That the applicant, Murray Sullivan, was employed by and for the Receiver as General Manager of the Salt Lake & Utah Railroad Company; that while en route to New York at the request of the Receiver, on company business, his train was two or three hours late. On reaching Poughkeepsie, N.Y., about 4:30 p. m., on Thursday, February 20th, 1930, applicant who was accompanied by his wife, decided that in as much as he could not reach New York in time to transact business on that day they would stop off at Poughkeepsie that night and visit with their daughter, who was there attending Vassar College, and take the train the next morning for New York.

"That upon the arrival of the train at Poughkeepsie at about 4:30 p. m., applicant and his wife were met by their daughter at the station and were taken to Vassar Alumni House, a hotel, where they secured accommodations for the balance of that day and that night; that the applicant and his wife then had, as their guests, for dinner at the Alumni House, their daughter, Nancy, and several of her girl friends; that following dinner, it being dark and foggy, applicant and his wife undertook to escort their daughter and her friends from the Alumni House on one side of the main street of Poughkeepsie known as Raymond Avenue, to the dormitory, where the daughter lived, located on the Vassar campus proper and across the street from the Alumni House; that in crossing said street the wife and daughter of applicant together with certain guests constituted one group while applicant and other of said guests constituted a second group; that while thus proceeding across said street applicant was struck by a motorcycle then and there being driven by one Edward Terrell, and as a result thereof sustained the injuries for which applicant now asks compensation."

The findings are fully supported by, and are in harmony with, the evidence, although it is also shown that Mr. Sullivan was employed at an annual salary payable semi-monthly, that there were no specific hours when he was required to be on duty, but was subject to call at all times, and that the business of the company which he was required to transact on his eastern trip required that he be present and consult with persons at Chicago, New York, and Boston.

It is contended on behalf of plaintiff that the trip which his employer required him to make exposed him to all the hazards of travel; that he was in the due course of the business of his employer at all times from his departure from Salt Lake City until his return; that so long as he was doing those things reasonably incidental on the trip he was in the scope and in the course of his employment; that in leaving the train at Poughkeepsie he was merely choosing the place to rest for the night which was in the interest of his health, instead of going on to New York City and resting at a hotel there; that in so doing he did not step outside of his employment, but did only what under the circumstances was a reasonable incident to the trip.

We think the order of the commission must be sustained. Plaintiff was not necessarily covered by the Industrial Act (Comp. Laws Utah 1917, §§ 3061-3165 as amended) every moment of the time he was absent from Salt Lake City on this business trip. It was evidently intended that he might combine business and pleasure. It was possible for him to step aside from his employment and do things not all connected with or incidental to his employment. When he left the train at Poughkeepsie to spend the afternoon and evening with his daughter and her friends, he did step aside from his employment to indulge in a personal pleasure wholly disconnected from the business for his employer. Even if it be considered that he did not step aside from his employment in choosing to sleep in a hotel at Poughkeepsie instead of New York City, still we think it must be held that in entertaining his daughter and her friends at dinner and in taking the short journey wherein he undertook to accompany them to the college dormitory was a diversion purely personal and in no way prompted by, or beneficial to, the interest of his employer. His employment did not require that he stop at Poughkeepsie nor that he should consult with or transact any business at or about the place where the accident occurred. There...