Total Transp. of Mississippi v. Shores, No. 2005-WC-01951-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Lee
• Citation: 968 So.2d 456
• Parties: TOTAL TRANSPORTATION, INC. OF MISSISSIPPI and Protective Insurance Company, Appellants v. Gerry Lynn SHORES, Widow and Dependent of Phillip Shores, Deceased, Appellee.
• Docket Number: No. 2005-WC-01951-COA.
• Decision Date: 21 November 2006

968 So.2d 456 TOTAL TRANSPORTATION, INC. OF MISSISSIPPI and Protective Insurance Company, Appellants
v.
Gerry Lynn SHORES, Widow and Dependent of Phillip Shores, Deceased, Appellee. No. 2005-WC-01951-COA. Court of Appeals of Mississippi. November 21, 2006. Rehearing Denied April 3, 2007.

[968 So.2d 459]

Jeremy Lloyd Carlson, Eve Gable, Jeffrey A. Walker, Jackson, attorneys for appellants.

Tina Lorraine Nicholson, Jackson, attorney for appellee.

EN BANC.

LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Phillip Shores and his wife, Lynn, were employed by Total Transportation, Inc., of Mississippi (Total) as an over-the-road trucking team. On January 16, 2003, the couple picked up a load in Sunnyside, Washington, and headed towards Jackson, Mississippi, to deliver the load. While on the road, the Shores began having trouble with their truck and located a Petro station in Laramie, Wyoming, to have the truck repaired. Prior to reaching the Petro station, Mrs. Shores dropped Mr. Shores off at a Sinclair Fuel Center because he wanted to get away from the truck and get something to eat. Mr. Shores had received approximately two hours of sleep in the preceding forty-eight hours and had not had anything to eat in almost twenty-four hours. He told her to go back to the Petro station, repair the truck, and then return to get him. Although they did not specifically discuss where to meet after Mrs. Shores dropped him off, Mrs. Shores testified that it was their custom to meet back wherever they separated. Mr. Shores logged off duty and entered the convenience store. Mrs. Shores also testified that they had been arguing and needed some time apart.

¶ 2. Mrs. Shores drove the truck back to the Petro station for the needed repairs. She returned to the Sinclair Fuel Station about an hour and half later around 6 p.m., went into the convenience store, but did not see her husband. The Sinclair fuel center was a U-shaped complex consisting of a convenience store, a motel, a liquor store, and Foster's Bar. There was no sign on the outside of the complex indicating that there was a bar inside, so Mrs. Shores never looked for her husband there. She did call the motel to see if he was there, but he was not. She proceeded to drive back to the Petro station to see if her

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husband had possibly received a ride over there. She saw no sign of him there or at a nearby Pilot fuel station. Mrs. Shores returned to the Sinclair station and drove around it several times trying to locate Mr. Shores. Mrs. Shores drove back to the Petro and Pilot stations two times before parking the truck around 10:00 p.m. in the emergency lane on the exit ramp where she originally dropped off Mr. Shores. She had a clear view of the Sinclair Fuel Station from that position. She stayed in the truck throughout the night, but never made contact with her husband. She left Laramie the next day around 6:00 a.m. and headed for Jackson, Mississippi. While waiting for her husband, Mrs. Shores checked to see if he had made an airline or bus reservation and called Total's dispatcher to see if he had checked in with them. Mrs. Shores testified that, while waiting for Mr. Shores, she thought he might have been angry enough with Total to quit. Mr. Shores had anger management problems and had quit prior trucking jobs after only short employment periods.

¶ 3. Mr. Shores entered Foster's Bar around 3:00 p.m. on January 17 and stayed until 2:00 a.m. when the bar closed. During that time Shores ate a meal, consumed several beers, and shot pool with several other patrons. The bartender told the local police that Shores "did buy a large amount of alcohol for himself and others." According to several witnesses, he appeared intoxicated while at the bar. Electronic records showed that he withdrew almost all of his weekly paycheck of over $400 from an ATM.

¶ 4. In his guilty plea, Christopher Shandy testified to the following. Shandy arrived at the bar around 11:00 p.m. and, at some point, played pool with Mr. Shores. After the bar closed at 2:00 a.m. Shores asked Shandy for a ride to the Petro station. In the parking lot, Shandy pulled a gun on Shores, ordered him to get in the car, and drove towards the Petro station. Shores offered Shandy all of his money, but Shandy told him to put it back in his wallet. He wanted to drop Shores off a considerable distance away from the Petro station in order to have plenty of time to flee the scene before Shores could call the police. Shores became nervous when they passed the Petro station and attempted to jump from the moving vehicle. Shandy shot him in the back as he exited the vehicle. Shores bled to death after jumping a fence and landing in a ditch a few hundred feet from the Petro station. Shores's autopsy revealed that his blood alcohol content was 0.137 grams per deciliter. He had $170 in his wallet and less than $20 in his pocket.

¶ 5. Mrs. Shores filed suit against Total and its insurance carrier, seeking workers' compensation benefits for the death of her husband. On September 7, 2004, the Administrative Law Judge entered an order awarding death benefits to Mrs. Shores. Total appealed the ALJ's ruling to the Commission, which affirmed without comment. Upon judicial review, the Circuit Court of Rankin County affirmed the decision of the Commission. Total perfected its appeal to this Court raising the following issues: (1) whether the Commission erred in holding that Mr. Shores was acting in the course and scope of his employment when he was killed; and (2) whether the Commission erred in holding that the third party assault on Mr. Shores was directed against him because of his employment. We find reversible error in regards to both issues.

STANDARD OF REVIEW

¶ 6. The standard of review in workers' compensation cases is well established. A decision of the Commission will be reversed only if it is not supported by

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substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(6) (Miss. 2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). If the Commission's decision and findings of fact are supported by substantial evidence, then we are bound by them even if we as fact finder would have been convinced otherwise. Spann v. Wal-Mart Stores, 700 So.2d 308, 311(12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss. 1991).

DISCUSSION

I. DID THE COMMISSION ERR IN HOLDING THAT MR. SHORES WAS ACTING IN THE COURSE AND SCOPE OF HIS EMPLOYMENT WHEN HE WAS KILLED?

¶ 7. In its first issue on appeal, Total argues that the Commission erred in holding that Mr. Shores was acting in the course and scope of his employment when he was killed. Mississippi's workers' compensation statutes compensate injuries "arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss.Code Ann. § 71-3-3(b) (Rev.2000). The term "arising out of employment" simply means there is a causal connection between the employment and the injury. Singley v. Smith, 844 So.2d 448, 453(¶ 20) (Miss.2003). One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment. Id.

¶ 8. If the employee is considered a traveling employee, the employee remains in the course of his employment from the time he leaves home until he returns unless the employee deviates from his employment. Bryan Bros. Packing Co. v. Dependents of Murrah, 234 Miss. 494, 500, 106 So.2d 675, 677 (1958). If the traveling employee is on a "personal mission or errand of his own" then he will not be compensated for his injuries. Id. Furthermore, in order to find a death or injury noncompensable on the ground that an employee deviated from his duties, the testimony must be sufficient to constitute an abandonment. Estate of Brown by Brown v. Pearl River Valley Opportunity, 627 So.2d 308, 311 (Miss.1993); Webb v. Hunter, 431 So.2d 1131, 1133 (Miss.1983). A mere deviation or departure by an employee from employment duties does not in and of itself constitute such a departure as to relieve an employer from liability for the employee's act on the ground that the employee has deviated from his service. Brown, 627 So.2d at 311. However, the supreme court has also held that unsanctioned recreational activities wholly unrelated to employment duties do not arise out of and in the course of employment. Id. at 313; Collier v. Texas Constr. Co., 228 Miss. 824, 828, 89 So.2d 855, 857-58 (1956).

¶ 9. Mr. Shores entered the bar around 3:00 p.m. and stayed there for over ten hours. Although he did eat, Mr. Shores stayed at the bar in order to drink and play pool. He withdrew his weekly paycheck of over $400, which Mrs. Shores usually put into a joint bank account, to buy drinks for himself and other patrons. According to the deposition of John Beeston, a deputy with the local sheriff's department in Laramie, two witnesses described Mr. Shores as intoxicated that evening. Furthermore, Mrs. Shores was worried that he may have quit since his

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employment history in previous years was spotty at best. Mrs. Shores testified that they had worked for six trucking companies from October 2000 until they began working for Total in mid-2002. The reasons for termination from these prior trucking jobs all stemmed from Mr. Shores's temper, including threatening his employer, threatening to wreck his truck, abandoning his truck, and throwing a rock at his truck and breaking the windshield. Prior to exiting the truck, Mr. Shores was angry with his wife and with Total because of problems and...