177 S.W.2d 181 | Ark. | 1943
Lead Opinion
September 12, 1941, at about 5:30 in the afternoon, Lawrence Stroud, husband of appellant, Annie Stroud, was killed, and appellant, Gilbert Bryant, was seriously injured, when a truck in which they were riding overturned on what is known as the "Kansas Road," near Gurdon, Arkansas.
Mrs. Stroud, as widow of Lawrence Stroud, and Gilbert Bryant, in his own right, filed claims before the "Arkansas Workmen's Compensation Commission" for compensation under the provisions of the "Workmen's Compensation Law," (Act 319 of 1939). The claims were first heard before one of the commissioners and there was a finding and decision in favor of the appellees, Gurdon Lumber Company, and Lumbermen's Reciprocal Insurance Exchange, its insurance carrier. Thereafter, upon appellants' petition for review before the full Commission, there was a hearing, which resulted in an affirmance of the finding and decision of the single commissioner. In apt time, appellants appealed to the Clark circuit court, where the claims were, by agreement, *492 consolidated for the purpose of trial, and upon the record made before the full Commission, the Clark circuit court "sustained and affirmed" the judgment of the full Commission. This appeal followed.
Appellants state the issue here in this language: "Appellants' contention is that the undisputed evidence shows these claimants were injured while they were actively engaged in performing their duties as employees; that the injuries arose out of and in the course of their employment and the Commission and the Circuit Court erred in failing to so hold."
The Arkansas Compensation Commission found that Stroud and Bryant, at the time of the mishap, which resulted in the death of Stroud, and the serious injury to Bryant, were employees of appellee, Gurdon Lumber Company, but that the death and injuries did not arise out of and in the course of their employment and denied compensation. This judgment of the Commission was affirmed by the Clark circuit court on appeal.
The question which we determine here is: Did the injuries to Stroud, which resulted in his death, and the injuries to Bryant, arise "out of and in the course of their employment?" The question is one of fact, and as indicated has been determined by the Commission and the trial court adversely to appellants' contention. On appeal here, unless we can say that the judgment of the Clark circuit court is not supported by substantial evidence, then by previous holdings of this Court, it would be our duty to affirm.
In the recent case of J. L. Williams Sons, Inc. v. Smith,
There appears to be little, if any dispute, as to the material facts. Lawrence Stroud owned and operated *493 his own truck. He lived with his family about 12 miles east of Gurdon, just north of the "Kansas Road." For some time prior to his death, he had hauled lumber for the Gurdon Lumber Company from three lumber mills, including the Harrington lumber mill. For this service, he was paid $3 per M. He worked when he pleased. Stroud employed Gilbert Bryant as his helper and paid him 75c per load. At the time of the injuries complained of here, there was only one mill, the Harrington mill, from which Stroud could haul, the other two mills having closed down. In order to supplement his work, Stroud, prior to the mishap, had rented his truck to the Arkansas Louisiana Gas Company, for $1.50 per hour, to be used by it during the day, or until 4 o'clock in the afternoon, when his truck, by agreement, was delivered by the Gas Company to the Texaco Filling Station at Gurdon, where it was serviced and made ready for Stroud, who then used it during the night in hauling lumber as above noted. It usually required the greater part of an hour to service the truck, and the Gas Company's driver of the truck (Easley), remained with it until Stroud came to the station and picked it up, (which he did a part of the time) If Stroud did not arrive at the station before the truck was serviced, Easley would drive the truck to Stroud's home and deliver it to him there.
On the afternoon that Stroud was killed and Bryant injured, Stroud left his home at about 3 p.m. to get his truck at the Texaco Station to haul lumber from Harrington's mill. When he reached the "Kansas Road," he was joined by his helper, Gilbert Bryant. They secured a ride with a man by the name of Thomas and rode with him for a short distance. They then got out and walked until they were picked up by another man, Herbert Jennings, and after riding for a short distance with him, they got out and secured a ride in a truck driven by a third man, Guy Langley, and while riding with Langley, the truck turned over before reaching Gurdon, killing Stroud and seriously injuring Bryant.
Stroud and Bryant were not working by the hour. The Gurdon Lumber Company had no control over them as to when they began or quit work, or the route traveled *494 in performing their work. Stroud, for his own convenience and profit, had arranged with the Gas Company, for a consideration of $1.50 per hour, to use his truck (the Gas Company furnishing its own driver, Easley) during the day, until 4 o'clock in the afternoon, when the Gas Company would deliver Stroud's truck to the service station in Gurdon to be serviced and then to be picked up by Stroud for night hauling of lumber from the Harrington mill. The Gurdon Lumber Company had not agreed to transport, and had made no provision for the transportation of Stroud and Bryant over the approximate 12 mile journey from Stroud's home to the service station in Gurdon, or to or from their work. Appellee was not interested in how appellants reached their place of work.
On the day of the mishap in question, Stroud and Bryant chose their own method of conveyance from Stroud's home to the service station. In so doing, they elected to ride with strangers who had no connection with the Gurdon Lumber Company. They knew that the Stroud truck would not be available to them until its delivery by the Gas Company to the service station at 4 o'clock and until after the additional time required to service the truck and put it in condition for Stroud's night use.
We think it clear on the facts presented that the work of Stroud and Bryant did not begin until the Stroud truck was delivered to them, and since the truck had not been delivered when the mishap occurred, the injuries resulting therefrom did not arise out of and in the course of their employment with the Gurdon Lumber Company.
On the facts as presented to the Commission, this case is clearly distinguishable from that of Hunter v. Summerville,
As we have indicated, no such fact situation is present in the instant case, since there is no evidence here that the Gurdon Lumber Company agreed to furnish Stroud and Bryant transportation to work.
The Court of Appeals of Maryland in Harrison v. Central Const. Corp., et al.,
And, in Royalty Indemnity Co. v. Madrigal,
The text writer in 28 R.C.L., p. 804, 93, says: "The compensation act, it has been very generally held, does not authorize an award in case of injury or death from a peril which is common to all mankind, or to which the public at large is exposed. * * * The employee gets up in the morning, dresses himself, and goes to work, because of his employment; yet if he meets with an accident before coming to the employer's premises or his place of work, that is not a risk of his occupation, but of life generally." And, the Supreme Court of Oklahoma, in Indian Territory Illuminating Oil Co. v. Gore, et al.,
Finding no error, the judgment is affirmed.
Dissenting Opinion
I respectfully dissent from the majority opinion in this case.
In my opinion, when a workman lives at such a distance from his work that he must use transportation in order to get to his place of employment, the risk that he incurs while using this transportation, regardless of its form and regardless of who furnishes it, constitutes a hazard of his employment. Therefore, any injury that he sustains while being transported to or from his work arises out of and in the course of his employment, so as to be compensable under the Workmen's Compensation Law. This, as I view it, was the principle underlying our decision in the case of Hunter v. Summerville,
Some recent cases in which this rule is clearly enunciated are: Industrial Commission v. AEtna Life Ins. Co.,
The recent decision of the Supreme Court of the United States in the consolidated cases of Aguilar v. Standard Oil Co., and Waterman Steamship Corp. v. Jones,
This court has frequently held that the Workmen's Compensation Law should be liberally construed in favor of those whom it was intended to protect — the workman and his dependents. Application of a liberal construction *498 of this law in the instant case would require, in my opinion, the allowance of both of the claims involved.