Wilson v. United Auto Workers Intern. Union

• Decision Date: 02 June 1969
• Docket Number: No. 5-4939,5-4939
• Citation: 246 Ark. 1158,441 S.W.2d 475
• Parties: Mavis D. WILSON, Appellant, v. UNITED AUTO WORKERS INTERNATIONAL UNION et al., Appellees.
• Court: Arkansas Supreme Court

Page 475

441 S.W.2d 475

246 Ark. 1158

Mavis D. WILSON, Appellant, v. UNITED AUTO WORKERS INTERNATIONAL UNION et al., Appellees.

No. 5-4939.

Supreme Court of Arkansas.

June 2, 1969.

McMath, Leatherman, Woods & Youngdahl, and John P. Sizemore, Little Rock, for appellant.

Smith, Williams, Friday & Bowen, by George Pike Jr., Little Rock, for appellees.

FOGLEMAN, Justice.

The widow of Harold Wilson, a staff representative of United Auto Workers International Union at the time of his death, asks us to reverse a judgment affirming the denial of death benefits by the Workmen's Compensation Commission. The commission found that Wilson's death on August 22, 1967, did not arise out of and during the course of his employment. As a point for reversal, appellant argues that the death of Wilson did so arise and that there is no substantial evidence to the contrary. As we understand the brief and argument on behalf of appellant, she contends that the evidence shows that Wilson's death arose out of and in the course of his employment as a matter of law. We do not agree.

The material testimony was as follows:

Wilson, a representative of United Automobile Workers, lived in North Little Rock. He worked under the supervision of the Little Rock office of the UAW, and his supervisor was Herbert Bingaman, Area Director. He had been going to Pocahontas off and on over a three-month period, during which he also spent some time in his business activities in Forrest City and Marianna. He went to Pocahontas on Monday, August 21, on the organizing mission that he had been conducting there. He was due to return to Little Rock on the following Saturday. He met a fellow organizer, Donald W. Slavens, at the Hillcrest Motel in Pocahontas where Wilson registered and obtained an air-conditioned room for the period of his stay there. Wilson was in charge of the campaign. He arrived at the motel about two o'clock and called on Slavens. The two discussed the program briefly and then went to the Shoe Workers' Hall to discuss plans. There they met with a committee around 2:00 p.m. and continued their discussion of plans until about 8:00 p.m. These parties separated for the evening meal, but later Wilson and Slavens met with two of the officers from the Shoe Workers' Lodge who were to help with the campaign. Wilson had his organizing material, files and papers in his room at the motel, along with the pamphlets and handbills and material normally used in this sort of campaign. The group was still engaged in this conference when Slavens asked to be excused about a quarter of eleven. Slavens and Wilson met between 7:30 and 8:00 a.m. on the following day and had breakfast together, after which they picked up material at the motel and went to the Shoe Workers' Hall, each in his own automobile. There they prepared the hall for a meeting scheduled at 2:00 p.m. These preparations consisted of sweeping, moving tables and chairs, obtaining and icing soft drinks, and arranging for attendance prizes. They left the hall around 11:15, each going his separate way. Wilson advised Slavens that he made a practice of not eating lunch at noon. Slavens ate lunch and returned to the ball about 1:00 p.m. and awaited Wilson's arrival. Before the time scheduled for the meeting, Salvens was advised by an undertaker, who was also county coroner, that Wilson had suffered an accident. Slavens immediately went to the motel. He learned that Wilson had been found in the swimming pool at the motel clad in swimming trunks and had been taken to the funeral parlor. The coroner, the chief of police and a doctor examined Wilson's body in Slaven's presence. The only signs of injuries were bruises about Wilson's face and forehead. Slavens was advised that these were caused by attempted artificial respiration at the swimming pool.

Slavens stated that, as he recalled, the temperature was a moderate 82 or 85 and that the day was not a particularly humid one. The testimony indicates that Wilson was in good health. The only evidence of the cause of his death was the certificate made by the coroner who stated that Wilson apparently drowned accidentally while swimming in the pool at Hillcrest Motel. The cause of death is not seriously contested.

Wilson was paid on annual salary and a per diem when traveling. He was reimbursed for motel, telephone and other expenses. He was on call 24 hours per day, having no set hours of work. He was on his own initiative as to when he worked to accomplish his assignment. He had full authority to interrupt his work day for personal reasons but remained on call even during these interruptions. It was normal for those holding positions as staff representatives to work out of the hotel or motel where they were staying during these campaigns. According to his supervisor, even though Wilson would be subject to call during self-designated periods of rest, relaxation or exercise, he was not required to leave word where he could be reached during these periods or to account to anyone for his time or whereabouts. He was expected to leave word at the home office as to where he could be reached. Wilson had advised this office that he would be at the Hillcrest Motel during his stay in Pocahontas.

UAW policy encouraged their employees to exercise and remain physically fit. They required annual physical examinations of these employees. They provided a $25 per year allowance for their representatives to enroll in YMCA programs. There is no evidence that Wilson ever took advantage of this allowance. Wilson had told his supervisor that swimming was one of his forms of relaxation and exercise. Other than this he had no knowledge of Wilson's practice of swimming at motels although he knew that Wilson spent a lot of time at motels. Bingaman stated that the Hillcrest Motel was the headquarters of both Wilson and Slavens during this campaign. Bingaman also testified that he had no objection to the usual practice of a staff member swimming in a motel pool when in operation, if the member enjoyed that type of recreation. The physical fitness program was voluntary, and some took advantage of it and some did not.

Appellant testified that she and her husband swam a lot when they stayed in a motel. She said he was never at home long enough to swim either in the pool or lake in the subdivision in which they lived. There was no reason for anyone to have called Wilson between 11:00 a.m. and 2:00 p.m. on the date of his death, although there was no reason to say with assurance that no one would call him. It was stipulated that Wilson was in the swimming pool alone and that no lifeguard was provided at the pool.

We find that there was a question of fact as to whether the death of Wilson arose out of and in the course of his employment and find substantial evidence to support the commission's finding that it did not. In its findings the commission stated:

'The Commission concludes from all of the evidence that deceased's death did not arise out of and during the course of his employment. The Commission is unable to say what caused deceased's death. There is a lack of evidence to establish a causal connection between deceased going swimming, if he did, and his employment. Deceased's employment did not require him to go to the swimming pool and there is no evidence that he was performing any service for his employer by taking off from his work activities in the middle of the day to go sun bathing or swimming. He was engaged in an activity of his own choosing and it was not one that bore a causal connection with his employment.'

In considering this case, it is necessary that we keep in mind basic fundamentals concerning review of workmen's compensation cases. The burden was on the claimant to show that the injury arose in the course of the employment and grew out of or resulted from the employment. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41. The findings of the Workmen's Compensation Commission have the same binding force, effect and verity as the verdict of a jury and are treated in this court in the same manner as a jury verdict. Kelley v. Southern Pulpwood Co., 239 Ark. 1074, 396 S.W.2d 305; American Casualty Company v. Jones, 224 Ark. 731, 276 S.W.2d 41. In doing so, we must accept that view of the facts which is the most favorable to the commission's findings. Albert Pike Hotel v. Trapner, 240 Ark. 958, 403 S.W.2d 73; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W.2d 484; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W.2d 113. We must also keep in mind that the commission must determine the extent to which credit is given to testimony, even when it is undisputed. Parrish Esso Service Center v. Adams, 237 Ark 560, 374 S.W.2d 468; American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41; Meyer v. Seismograph Service Corporation, 209 Ark. 168, 189 S.W.2d 794. When we consider the findings of the commission in the same manner as we would a jury verdict on the question involved here, we must sustain the commission's findings.

Even though there is no conflict in direct evidence as to facts material to a determination whether an employee met death while in the course of his employment, the Workmen's Compensation Commission has a right to consider all circumstances and proven facts and to draw all reasonable inferences deducible therefrom United Steel Workers v. Walden, 228 Ark. 1024, 311 S.W.2d 787. The questions posed in this case are the same that confronted the court in Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S.W.2d 521. They are: 'Do the facts and circumstances of this case show, as a matter of law, that appellant's injury arose out of and in the course of his employment? Or, to the same effect, the question may be more specifically stated: Do the facts and circumstances shown by the record reveal a lack of substantial evidence to support the Commission's finding that appellant's injury did not arise out of and in the...