Taylor v. Centex Const. Co.

• Decision Date: 02 March 1963
• Docket Number: No. 43254,43254
• Citation: 379 P.2d 217,191 Kan. 130
• Parties: Elton TAYLOR, Appellant, v. CENTEX CONSTRUCTION COMPANY, Inc., and United States Fidelity & Guaranty Company, Appellees.
• Court: Kansas Supreme Court

Page 217

379 P.2d 217

191 Kan. 130

Elton TAYLOR, Appellant, v. CENTEX CONSTRUCTION COMPANY, Inc., and United States Fidelity & Guaranty Company, Appellees.

No. 43254.

Supreme Court of Kansas.

March 2, 1963.

Rehearing Denied April 15, 1963.

Syllabus by the Court

The record in a workmen's compensation proceeding where the claimant received compensable injury to his eye in the course of his employment and while returning from the doctor's office in Topeka, his pickup truck was involved in an accident resulting in serious injury, is examined, and, as more fully set forth in the opinion, it is held: (1) Under the Workmen's Compensation Act securing medical treatment was in the course of claimant's employment with respondent and the trip to and from the doctor's office arose out of the nature, conditions, obligations or incidents of his employment; (2) where the claimant was not directed to follow any prescribed route going to and returning from the doctor's office, he had the discretion to select a route which was reasonable and practical and did not materially delay his return, and the fact that the route selected was a longer route did not alone constitute an abandonment of his employment, and (3) there is no substantial evidence to support the findings of fact made by the district court and it erred in its conclusion of law that the claimant's accident did not arise out of and in the course of his employment with respondent.

George E. McCullough, Topeka, argued the cause, and W. L. Parker, Jr., Robert B. Wareheim, Reginald LaBunker and John Carpenter, Topeka, were with him on the briefs for appellant.

David H. Fisher, Topeka, argued the cause, and Irwin Snattinger, Donald Patterson, C. K. Sayer and Jack L. Summers, Topeka, were with him on the briefs for appellees. FATZER, Justice.

In this workmen's compensation case the examiner made an award of compensation to the claimant, which was approved by the director of workmen's compensation. Upon appeal to the district court, findings of fact were made and the court entered its conclusion of law that the accident did not arise out of and in the course of claimant's employment with Centex Construction Company, Inc., and denied an award of compensation. The claimant has appealed.

The usual preliminary features of a compensation case such as employment, being under the Act, notice of the alleged accident, demand for compensation, and amount of wages, are not controverted. No point is urged as to the fact of claimant's accidental injury which occurred on August 17, 1960, or about his actual disability. The serious question presented is whether the findings of fact made by the district court were supported by substantial evidence and support the conclusion of law that the accident did not arise out of and in the course of claimant's employment with the respondent.

The findings of the district court are quoted and summarized: The claimant was employed by respondent as a cement mason foreman at respondent's job site on the Capehart Housing Project, approximately seven miles south of Topeka, and one-half to one mile west of U. S. Highway 75. On August 16, 1960, claimant suffered an eye injury while working for respondent and after reporting to work on the morning of August 17, he asked for and received permission to visit a doctor about the eye injury. Claimant left the job site sometime after 10:30 and approximately noon, driving his own pickup truck, and proceeded to Highway 75, thence north to Topeka where he visited the doctor. Upon leaving the doctor's office, instead of turning south on Highway 75 to return by the route he had come to Topeka, claimant proceeded west on Tenth Street to Fairlawn Road, where his son operates a service station. Fairlawn Road is approximately three miles west of Highway 75. Claimant stopped at the service station to have his son call claimant's wife to report the results of the visit to the doctor. While at the service station, claimant had his truck greased, and ate his lunch which he carried with him. When the truck was greased, claimant left the service station and drove south on Fairlawn Road to Twenty-first Street, turned west on Twenty-first Street and stopped at the Silver Spur Tavern where he purchased a bottle of pop. Leaving the Silver Spur, claimant proceeded on west on Twenty-first Street to Wanamaker Road, which is one mile west of Fairlawn Road, turned south on Wanamaker Road to the Dover Road, turned east and drove to the Burlingame Road where he turned south. About one-fourth of a mile south of the intersection of the Burlingame Road and the Dover Road, claimant drove into a cloud of dust and collided with a road sweeper, receiving a serious injury to his knee and other injuries. It is for these injuries that claimant now seeks compensation. The location where the accident occurred was approximately one mile west and one-half mile north of the respondent's job site, and the time was approximately 1:00 p. m.

The claimant was paid one-half hour overtime per day by respondent for the use of his truck, but this was no longer in effect at the time of the accident, although claimant was allowed to use company gasoline to drive his truck around the job site and to and from his home.

In concluding that the accidental injury which the claimant sustained did not arise out of and in the course of his employment with respondent, the court made the following findings upon which it denied compensation:

No. 1. '* * * that the automobile accident in which the claimant received his injury was not caused by the negligence of the employer. * * *'

No. 2. '* * * that although the claimant had been permitted to go to the doctor's office the same was not a part of his employment. * * *'

No. 3. '* * * that the claimant went to the doctor's office on his own decision over his lunch hour. * * *'

No. 4. '* * * that the claimant had further abandoned his trip to the doctor's office and had deviated from said trip, and had, for his own convenience, gone to his son's service station, where he ate his lunch and had travelled a considerable distance from Topeka, Kansas, before commencing to return to his place of employment and had not, when said accident occurred, returned to his place of employment. * * *'

In discussing the various contentions of the parties and in determining whether there was substantial evidence to support the district court's findings of fact and its conclusion of law, it is necessary to make a somewhat detailed analysis and narration of the evidence.

On June 23, 1960, the claimant suffered an injury to an eye which required medical treatment. The respondent furnished medical treatment and sent claimant to the doctor on company time and paid for the gasoline to be used in his pickup truck as it was under the employer's direction that claimant keep his gasoline tank filled with company gasoline. It was respondent's policy to direct injured employees to report to a doctor in Topeka on company time and on company pay. The claimant reported several times to the doctor for treatment of the eye, and payment of the doctor's charges was made by the employer or its insurance carrier.

The claimant continued doing the heavy work of a cement mason even though he was foreman, and on August 16, 1960, as he came out of a building then under construction he had a sharp pain in the eye previously injured, either from something striking the eye or by some unknown cause. His eye hurt severly but he went home the night of August 16, and reported back to work at 8:00 a. m. on the morning of August 17. After reporting to work claimant spoke to Charles Mankin, his superintendent, concerning his eye injury and he was directed to go to the office of the company and get a ticket and report to Topeka to see Dr. Bridwell for treatment. He testified that he did not go to the office and get a ticket immediately, 'inasmuch as we know that the doctors don't get to their offices before 10:00 or 11:00 o'clock, you can't get in to see one.' There was a conflict in the testimony as to the exact time the claimant left the construction site, but the evidence showed that he went to the company office sometime between 10:00 and 11:30 a. m. and secured the ticket authorizing him to visit the doctor.

Forbes Air Force Base lies immediately east of Highway 75 for more than the entire distance of Capehart Housing Project, and a large warehouse area lies immediately west of Highway 75 and between the base and Capehart. The evidence showed that there were three roads used by employees of respondent traveling from and to the housing project. Two roads connected with Highway 75 to the east and one road connected with a county road immediately to the west. Of the roads connecting with Highway 75, one was referred to as the 'north' road and the other as the 'south' road. The field office manager and the office manager of respondent testified for appellees, and both testified that at the time in question the Air Force had signs and postings around the project and along the 'south' road directing employees and personnel of respondent to enter the project from the west. The office manager testified that the Air Force wanted 'to eliminate, as much as possible, trailers and trucks, and the heavy traffic through' the entrances from Highway 75. He further testified that 'the west (road) was the proper route for him (claimant) to enter the project; that it is the route upon which he was hurt.'

Testifying as to the route he took to Topeka and the bad road going to Highway 75, the claimant stated:

'I left the area where I was working and went down to the main office and got a slip to go to the doctor, and I tried to go out north, that road was blocked toward 75, so I turned around and went back by the office and out the other (south) road which they were working on and it was pretty near impossible to get through.'

He further testified that he ended up on Highway...