Wyoming State Treasurer ex rel. Workmen's Compensation Dept. v. Boston

• Decision Date: 04 October 1968
• Docket Number: No. 3679,3679
• Citation: 445 P.2d 548
• Parties: WYOMING STATE TREASURER ex rel. WORKMEN'S COMPENSATION DEPARTMENT, Appellant, the University of Wyoming, (Employer below), v. Doran Kenneth BOSTON, David John Bostrom and Joan Colgan, widow and dependent of Randy J. Colgan, Deceased, Appellees (Claimants below).
• Court: Wyoming Supreme Court

Page 548

445 P.2d 548

WYOMING STATE TREASURER ex rel. WORKMEN'S COMPENSATION DEPARTMENT, Appellant, the University of Wyoming, (Employer below), v. Doran Kenneth BOSTON, David John Bostrom and Joan Colgan, widow and dependent of Randy J. Colgan, Deceased, Appellees (Claimants below).

No. 3679.

Supreme Court of Wyoming.

Oct. 4, 1968.

Joseph E. Darrah, Sp. Asst. Atty. Gen., Cheyenne, Joseph R. Geraud, Laramie, for appellant.

Tom H. Barratt, Laramie, for appellee Doran Kenneth Boston.

Lawrence A. Yonkee, Sheridan, for appellee Joan Colgan.

No appearance for appellee David John Bostrom.

Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Claims of compensation under Workmen's Compensation were allowed by the judge of Natrona County district court. The State Treasurer, as trustee of the state's industrial accident fund, has appealed. Although an attorney for the University of Wyoming, the employer, has joined in and signed the brief of appellant, the record does not indicate the University has appealed.

It is conceded by all parties that Doran Kenneth Boston, David John Bostrom, and Randy J. Colgan were all employees of the University of Wyoming when the accident in question occurred. The three men, all of whom were enrolled as students in the University, were employed to assist in the conduct of a highway research project between Midwest and Kaycee, Wyoming. They were assigned to take certain sub-surface moisture measurements, density measurements and measurements on surface elevations on the roadway at the project site.

A vehicle owned by the University of Wyoming was furnished for the purpose of providing necessary transportation between the job site and Casper, where the crew had lodging accommodations. Events leading up to the accident are not in serious dispute. Insofar as there may have been minor conflicts in testimony, however, claimants are entitled to rely on that most favorable to them, and we will relate the facts accordingly.

The three employees finished work on Saturday evening, March 25, 1967, approximately 12 miles south of Kaycee. They quit work about 5:30 p. m., but on account of getting stuck in the mud they did not get to Midwest until about 8:00 p. m. Midwest was on the way toward Casper and was the place where the crew stored its equipment. After storing the equipment, the men went to the Rimrock Cafe and Bar in Midwest. There they ate dinner, drank some beer, played the bowling machine, and remained until approximately 10:30 p. m.

The crew then decided to go to Kaycee, in the opposite direction from Casper. There they played another bowling machine and drank a limited amount of beer. Upon leaving Kaycee, about 1:00 a. m., Bostrom drove the vehicle and proceeded toward Midwest and Casper. He claims the others were asleep when he got to Midwest, and that he proceeded on toward Casper so the men could get some sleep before returning to the job.

About 19 miles out of Midwest, toward Casper, at approximately 2:00 a. m., the vehicle left the roadway, travelled about 65 feet and hit a bridge abutment. The collision resulted in the death of Colgan and injuries to the other two employees.

The University of Wyoming objected to the allowance of compensation, but the court entered its order allowing compensation. The state treasurer then petitioned to reopen the case. This was allowed and the matter was heard again, with the treasurer's office represented. The court reaffirmed the awards of compensation, and the treasurer has appealed.

Appellant contends the allowance of compensation was not proper because (1) there was a deviation from, and an abandonment of, the employment at the time of the accident; and (2) there was not shown a causal relationship between the accident and a furtherance of the employer's business.

Section 27-49 (III)(a), W.S.1957, C. 1967, specifies that the words 'injuries sustained in extrahazardous employment' shall not include injuries occurring while the employee is on his way to assume the duties of his employment or after leaving such duties, if the employer's negligence is not involved.

In Jensen v. Manning & Brown, Inc., 63 Wyo. 88, 178 P.2d 897, 907, however, it was held where the employer furnishes claimant with free transportation to and from his home as an incident of the contract of employment and for the mutual advantage of both, injuries suffered in an accident during such transportation are compensable under the Workmen's Compensation Act. The court considered that the injuries, under such circumstances, are sustained during the course of the employment relationship. 178 P.2d 908. That, of course, is equivalent to saying the duties of employment are assumed during such transportation.

Where the employer does not furnish transportation for the employee who is injured going to or returning from work, the rule of the Jensen case does not apply. See White Ditching Co. v. Giddeon, Wyo., 413 P.2d 45, 47. Suffice it to say, as far as the present case is concerned, appellant-treasurer concedes that if the employees had not deviated from the homeward journey by traveling from Midwest back to Kaycee and spending time there, the death and injuries sustained in the accident would have been compensable.

The trial court drew special attention to the fact that it is undisputed lodging in Casper was authorized by the employer and the workmen were entitled to charge the employer for the time spent in travel to and from work. This makes it abundantly clear that, absent any deviation, the employment relationship would entend during travel to and from work. In holding that such relationship existed at the time of the accident here involved, the trial court relied on the fact that the accident occurred 'on the route' of the workmen's travel to and from work.

As to whether there was such a deviation from employment as to constitute an abandonment of the employment, we notice in 1 Larson's Workmen's Compensation Law, § 19.32, p. 294.73, the case where a personal deviation has been completed and the direct business route has been resumed is referred to as a clearly compensable type of case.

Courts have often applied the rule that, when an employee is covered by a compensation act, an unauthorized side trip for personal reasons usually precludes a recovery for an injury during the side trip. However, when the diversionary trip is completed and the employee has returned to his original route, he is again covered by the act; and, if injured after resuming his authorized travel, he may recover. Sherrill & LaFollette v. Herring, 78 Ariz. 332, 279 P.2d 907, 909-910; West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 253. See also 58 Am.Jur., Workmen's Compensation, § 227, p. 734; and 1 Larson's Workmen's Compensation Law, §§ 19.31 and 19.32, pp. 294.72-294.74.

We are not prepared to subscribe to this rule for all circumstances. There may be circumstances in some cases which would make it necessary to say as a matter of law that there was a complete abandonment of the employment relationship. But we do say, under the circumstances in this case, that the side trip from Midwest to Kaycee and back again to Midwest, lasting approximately three hours at nighttime when further work was not expected, would not require the trier as a matter of law to infer that the employees had abandoned their employment. See Sherrill & LaFollette v. Herring, 78 Ariz. 332, 279 P.2d 907, 910.

In the Sherrill & LaFollette case at 279 P.2d 911, the Arizona Supreme Court stated, if circumstances arise where the time element becomes of importance in deciding whether the employment was terminated by deviation and two inferences can be drawn, the appellate court cannot disturb the conclusion reached by the trier. It was pointed out reasonableness or unreasonableness of time is a question to be determined by the fact finder unless only one inference can be drawn from the undisputed facts.

For a statement by our court of the general rule where two inferences can be drawn, see Bocek v. City of Sheridan, Wyo., 432 P.2d 893, at 895.

In the case we are now concerned with,...