Bayless v. Sparkman Livestock Sales , 350 P.2d 233 ( 1959 )

BLACKBIRD, Justice.

Ruby Bayless, hereinafter called claimant, filed her first notice of injury and claim for compensation under the Death Benefit Provisions of the Workmen’s Compensation Law, 85 O.S.1951 § 1 et seq., stating that she is the widow of Thomas Nathaniel Bayless, hereinafter called employee, who was killed November 10, 1957, while in the employ of Sparkman Livestock Sales. The State Industrial Commission denied an award, and this proceeding is brought by claimant against Sparkman Livestock Sales, employer, and its insurance carrier, United States Fidelity and Guaranty Company, a corporation to review the order denying the award.

The record discloses that the employee was on his way from Elk City, Oklahoma, to Tupelo, Mississippi, when he died as the result of asphyxiation in a tourist court in Sherman, Texas. He left Elk City on November 9, 1957, and drove the employer’s truck loaded with hogs and cattle to Fort Worth, Texas, unloaded the livestock and went to Sherman, Texas, where his death occurred. The owner of the tourist court testified that employee retired about 8:00 p. m. and was dead the next morning. The owner of the court found a gas stove burning in the room occupied by employee.

Colonel Sparkman, manager and member of the employer, testified that he directed employee to unload the livestock at Fort Worth and drive to Jackson, Mississippi, with the employer’s truck and contact L. R. Webb, owner of a tourist court in Jackson, for the purpose of making arrangements for the return of the loaded truck from Tupelo. L. R. Webb was an associate of Sparkman. The testimony discloses that if it was the intention of employee to follow the directions as above described and go from Fort Worth to Jackson before going to Tupelo, the trip from Fort Worth to Sherman would be approximately 150 miles out of the way. Sparkman further testified that the employee paid for his own meals and lodging out of a commission earned by agreement between the employer and the employee.

Claimant offered the testimony of several witnesses, including a personal friend of the family, a son-in-law and children of claimant and employee, to the effect that Sparkman admitted to them that he told employee there were two routes to Tupelo and that the employee could take either route. It is disclosed by the testimony that Sherman would be on one of these routes.

The State Industrial Commission found, in part, as follows:

“T. N. Bayless, deceased, was employed by respondent on November 9, 1957, to drive a truck load of livestock from Elk City, Oklahoma to Ft. Worth, Texas, for delivery and thence to Tupelo, Mississippi via Jackson, Mississippi, to pick up another load of livestock for return delivery to Elk City, Oklahoma, for which he was to be paid a commission based on gross income from operation of the truck, and was to pay his own personal expenses for meals and lodging.

“That decedent delivered that load of livestock to Ft. Worth, Texas, on November 10, 1957, and thereafter deviated from his route to Jackson, Mississippi, by changing to a different and longer route to Sherman, Texas where he rented a room in a motel the evening of said November 10, 1957 and died therein some time during said night from asphyxiation and by reason of which facts the death of said T. N. Bayless did not arise out of and in the due course of his employment with respondent.”

Claimant presents the single issue that the State Industrial Commission erred in finding that the accidental injury resulting in death did not arise out of and in the course of the employment.

Our Court has considered cases wherein awards were made for accidental injury occurring while the employee was traveling for the employer. Trans-Tex Drilling Co. v. Pittser, Okl., 298 P.2d 446; Baash-Ross Tool Co. v. State Industrial Commission, Okl., 289 P.2d 659; Oklahoma State Highway Department v. Moyer, Okl., 302 P.2d 153; International Harvester Co. v. Harris, Okl, 272 P.2d 1046.

Although the above cases do not include one in which an accidental injury resulted while the employee was in a lodging, one case involves a highway accident on the way to a cafe for meals and an intent thereafter to stay in a lodging. Baash-Ross Tool Co. v. State Industrial Commission, supra.

Other courts have passed directly on the question. Dalgleish v. Holt, 108 Cal.App.2d 561, 237 P.2d 553; California Casualty Indemnity Exchange v. Industrial Accident Commission of California, 5 Cal.2d 185, 53 P.2d 758; Stansberry v. Monitor Stove Co., 150 Minn. 1, 183 N.W. 977, 20 A.L.R. 316; Lasear Inc. v. Anderson, 99 Ind.App. 428, 192 N.E. 762; and Texas Employers’ Insurance Association v. Harbuck, Tex.Civ.App., 73 S.W.2d 113. In Dalgleish v. Holt, supra [108 Cal.App.2d 561, 237 P.2d 556], it is stated:

“As a general rule a commercial traveler is regarded as acting within the course of the employment during the entire period of his travel upon his employer’s business. His acts in traveling, procuring food and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workmen’s Compensation Act applies. * * * ”

We think the above cases support the rule that if the employee was on his way at the direction of the employer and was lodging at a place on that route, the fact that he was paying for his own lodging is without legal significance. The question presented therefore is whether there is any competent evidence reasonably tending to support the finding of the State Industrial Commission that the injury did not arise out of and in the course of the employment because the employee deviated from the route directed by his employer. We think there is.

It is the general rule that where an employee deviates from the route prescribed by the specific directions. of the employer an accidental injury sustained during this period of deviation does not arise out of and in the course of the employment. Cochran v. Maassen Tool & Supply Co., 204 Okl. 60, 226 P.2d 953; Harris v. Industrial Commission, 72 Ariz. 197, 232 P.2d 846; Annotations, and cases following, 100 A.L.R. 1053.

Claimant argues that the testimony of witnesses that Sparkman told them he had told employee there were two ways to Tupelo, Mississippi, and that the employee could take either way is not disputed. This is true. Although the record shows the case was continued for the taking of depositions, no depositions were taken and Sparkman was not recalled to testify after the testimony of these witnesses. But this does not obliterate or render valueless the testimony of Sparkman that he directed the employee to go to Jackson. Claimant does not argue that if the employee were directed to go to Jackson the trip to Sherman did not constitute a material deviation. Claimant rather argues the evidence is overwhelming there was no such direction. This was a question of fact to be determined by the State Industrial Commission. In Standish Pipe Line Co. v. Johnson, 197 Okl. 238, 169 P.2d 1018, it is stated:

“The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and, where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate the award.”

There is competent evidence reasonably tending to support the order denying the award.

Order sustained.

DAVISON, C. J., and WELCH, HALLEY, and JACKSON, JJ., concur. WILLIAMS, V. C. J„ and JOHNSON, IRWIN, and BERRY, JJ., dissent.