Tinsman Mfg. Co. v. Sparks

• Decision Date: 21 April 1947
• Docket Number: No. 4-8172.,4-8172.
• Citation: 201 S.W.2d 573
• Parties: TINSMAN MFG. CO., Inc., et al. v. SPARKS et al.
• Court: Arkansas Supreme Court

Page 573

201 S.W.2d 573

TINSMAN MFG. CO., Inc., et al. v. SPARKS et al.

No. 4-8172.

Supreme Court of Arkansas.

April 21, 1947.

Appeal from Circuit Court, Calhoun County; Gus W. Jones, Judge.

Proceeding under the Workmen's Compensation Act by Versa Sparks and others, as widow and dependents of W. E. Sparks, employee, to recover compensation for employee's death, opposed by Tinsman Manufacturing Company, Inc., employer, and its workmen's compensation insurance carrier. From a judgment of circuit court affirming an order of workmen's compensation commission in favor of claimants, the employer and insurance carrier appeal, and the claimants cross-appeal.

Affirmed.

M. J. Harrison, of Little Rock, for appellants.

J. R. Wilson, of El Dorado, for appellees.

McFADDIN, Justice.

This appeal challenges an award made by the Workmen's Compensation Commission. The principal question is: Did the death of the employee (Sparks) arise out of and in the course of his employment? An incidental question concerns interest on compensation awards.

The facts — viewed in the light most favorable to the commission's award — may be summarized as follows: The Tinsman Manufacturing Company employed crews to go into the woods and cut timber to be hauled to the mill. The superintendent in charge of the timber-cutting crews was called the "woods superintendent." W. E. Sparks was employed as a saw filer by the Tinsman Manufacturing Company. He lived about 2½ miles west of Tinsman, Arkansas, and his duties placed him under the "woods superintendent." Sparks was transported on a company bus or truck from his home to his place of work, and return. He was paid by the hour, and his pay-time began when he left home in the morning, and continued until he returned at night. In addition, he sometimes took saws home and filed them at night, keeping his own time, and being paid for this work.

On the morning of September 29, 1944, W. E. Sparks entered the company bus at his home, to be transported to a tract of timber located about 15 miles south of Hampton, where he and the other employees in the bus were to work that day. The bus driver was directed and authorized by the woods superintendent to stop the bus at any place, either going to or returning from work, on the request of any employee, and to wait until such employee made personal purchases, such as groceries, tobacco, etc. This was on company time, and was authorized and permitted by the woods superintendent. On the day in question the journey necessitated going through the town of Hampton. Mr. Sparks was a constant user of smoking tobacco; and that fact was well known. When the bus reached Hampton, Mr. Sparks asked the bus driver to stop long enough for Sparks to purchase some smoking tobacco. The bus driver stopped in front of a cafe in Hampton, and Sparks alighted to cross the highway to make his purchase. As he was crossing the highway, he was struck and killed by a vehicle owned and operated by a third person not a party to this present appeal.

Appellees (claimants) are the widow and dependents of W. E. Sparks. They filed claim for compensation under the Workmen's Compensation Law. Appellants are the employer and its workmen's compensation insurance carrier. Appellants resisted the claim on the contention that Sparks' death did not arise "out of and in the course of employment" as those words are used in our Workmen's Compensation Law (see Section 2(f) of Act 319 of 1939). After an extensive hearing, the Workmen's Compensation Commission made an award for the claimants It is for this reason that we review the facts in the light most favorable to support the award. See J. L. Williams & Sons, Inc., v. Smith, 205 Ark. 604, 170 S.W.2d 82; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113, and other cases collected in West's Ark.Dig., Workmen's Compensation. The circuit court affirmed the award; and the employer and its insurance carrier have appealed to this court.

I. Did Sparks' Death Arise Out of and in the Course of His Employment? Appellants admit that, if Sparks had suffered casualty while on the bus, the appellants would have been liable; but appellants urge that, when Sparks left the bus to cross the highway to purchase smoking tobacco, then he deviated from his employment and his death did not arise "out of and in the course of his employment." To support their position, appellants have furnished us with a splendid brief, listing and discussing the following cases claimed to sustain their contention: In re Betts, 66 Ind.App. 484, 118 N.E. 551; California Casualty Indemnity Exchange v. Industrial Commission, 190 Cal. 433, 213 P. 257; Morgan v. United Taxi Co., 105 Ind.App. 340, 14 N.E.2d 736; Toombs v. Liberty Mutual Ins. Co., 173 Tenn. 38, 114 S.W.2d 785; Clark v. Voorhees, 231 N.Y. 14, 131 N.E. 553; Southern Surety Co. v. Galloway, 89 Okl. 45, 213 P. 850; Gardner's Case (Employers' Liability Assurance Corp.), 247 Mass. 308, 142 N.E. 32, 32 A.L.R. 804; Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026; Hornby's Case, 252 Mass. 209, 147 N.E. 577; Carlstrom's Case, 264 Mass. 493, 162 N.E. 893; Dubbert v. Beucus, 96 Ind.App. 390, 185 N.E. 311; Hill v. Dept. of Labor, 173 Wash. 575, 24 P.2d 95; Labbe v. American Brass Co., 132 Conn. 606, 46 A.2d 339; Hayes v. Industrial Commission, Ohio.App., 60 N.E.2d 492.

We have studied each of these cases, and — aside from Hornby's case, supra, and the case of In re Betts, supra — we find two decisive facts present in the case at bar that were not present in any of the cases cited by the appellant. It is the concurrence of these two decisive facts that distinguish the case at bar from the cases relied on by the appellant. These facts are: Not only was Sparks "on company time," but the appellant (acting through its woods superintendent) had all the time, and with full knowledge, permitted Sparks and other employees to stop the bus and make individual purchases. In so doing, the employer permitted Sparks and the other employees to pursue a course of procedure that cannot be held to be such a deviation from the employment, as to remove Sparks from the protection of the Workmen's Compensation Law. In other words, whatever deviation there might have been, was too slight to release the appellants from the coverage afforded Sparks as an employee.

In Horovitz on Workmen's Compensation, p. 112, this appears:

"Must the injury arise out of the main work which produces the employee's wages? If hired to cut wood, or run a machine, does the protection cease when he goes for a drink of water to a nearby water-cooler placed there for that purpose? Or does the right to an award cease if, acting on an impulse of nature, he goes to the toilet and is injured on the way thereto or because of a defect in that room? Or if he is eating an employer-provided lunch, as permitted or required by the employer or by the nature of the employment and he suffers food poisoning — does that arise `out of' his employment?

"These acts of personal ministration are universally recognized as incidents of the employment. Incidents of the employment, say most states, are as well protected as the injuries on the main job; and so saying, the courts begin to disagree as to what are incidents."

Then, after citing numerous cases, in some of which the acts of personal ministration were recognized as incidents of the employment, and in others in which the acts of personal ministration were considered as turning aside from the employment, the text (Horovitz) continues:

"So, too, getting fresh air, smoking, resting, eating food or ice cream, quenching thirst, * * * have been held compensable incidents (`contractual', `reasonable,' or just plain `Incidents') of one's employment; * * *

"But slight deviations are no defence under most state decisions. Thus a slight deviation to get a chew of tobacco, or to ask a fellow employee the time, or to throw away a cigarette, is harmless, and awards were upheld where the injury occurred during the deviation."

The paragraph last quoted above is the one that applies directly to the case at bar.

In the case of Railway Express Agency v. Lewis, 156 Va. 800, 159 S.E. 188, 76 A.L.R. 350, the Virginia Supreme Court of Appeals had before it a case involving facts somewhat similar to the case at bar. There, Lewis was a truck driver for the express agency, and obtained the consent of his employer to make a short deviation from the truck route so that Lewis might engage in a personal errand. This deviation was so slight that the Virginia court held that the injuries Lewis sustained arose "out of and in the scope of his employment", even though it was while he was on the personal errand that he was killed.

There is an annotation in 76 A.L.R. 356 on the subject, "Workmen's Compensation: Deviation on personal errand as affecting question whether injury to employee on street or highway arose out of and in the course of employment." It is there stated that liability ultimately depends upon the facts and circumstances of each case. Among cases allowing compensation, there is listed in the annotation the following: Beaudry v. Watkins, 191 Mich. 445, 158 N.E. 16, L.R.A.1916F, 576, in which a delivery boy, by permission, stopped at home for lunch on his way to collect a package; Stratton v. Interstate Fruit Co., 47 S.D. 452, 199 N.W. 117, in which a truck driver by permission drove to his home for lunch, and was injured while returning to his place of business; Rachels v. Pepoon, 135 A. 684. 5 N.J.Misc. 122, and Id., 104 N.J.Law 183, 139 A. 923, in which a helper on a newspaper distribution truck obtained his employer's consent to attend to personal business, and was injured while returning; Zeier v. Boise Transfer Co., 43 Idaho 549, 254 P. 209, in which an employee en route to a freight depot stopped for lunch, and was injured after resuming his journey; Sztorc v. James H. Stansbury, Inc., 189 App.Div. 388, 179 N.Y.S. 586, where the...