Sid LYTLE v. ARKANSAS TRUCKING SERVICES and
Gibraltar National
CA 95-986 ___ S.W.2d ___
Court of Appeals of Arkansas
Division II
Opinion delivered June 11, 1996
1. Workers' compensation -- review of Commission's decision --
factors on review. -- When reviewing a decision of the
Workers' Compensation Commission, the court views the evidence
and all reasonable inferences deducible therefrom in the light
most favorable to the findings of the Commission and affirms
that decision if it is supported by substantial evidence.
2. Workers' compensation -- dual-purpose doctrine defined. --
The dual-purpose doctrine states that injury during a trip
which serves both a business and a personal purpose is within
the course of employment if the trip involves the performance
of a service for the employer that would have caused the trip
to be taken by someone even if it had not coincided with the
personal journey; this applies to out-of-town trips, to trips
to and from work, and to miscellaneous errands such as visits
to bars or restaurants motivated in part by an intention to
transact business there.
3. Workers' compensation -- "dual-purpose" trip doctrine --
decisive test for applicability. -- The decisive test for
application of the "dual-purpose" trip doctrine must be
whether it is the employment or something else that has sent
the traveler forth upon the journey or brought exposure to its
perils; service to the employer need not be the sole cause of
the journey, but at least it must be a concurrent cause and
sufficient within itself to occasion the journey.
4. Workers' compensation -- "going-and-coming" rule -- dual
purpose doctrine an exception to rule. -- The dual-purpose
doctrine is one exception to the "going-and-coming" rule,
which generally precludes recovery for an injury sustained
while an employee is going to or returning from his place of
employment; a determination that a trip falls within this
exception does not end the inquiry but merely serves to label
the trip as either business or personal; deviations from the
main purpose require a separate inquiry and an identifiable
deviation from a business trip for personal reasons takes the
employee out of the course of his employment until he returns
to the route of the business trip, unless the deviation is so
small as to be disregarded as insubstantial.
5. Workers' compensation -- appellant's side trip a substantial
deviation from his business trip -- substantial evidence
supported finding that appellant was not in course of
employment when accident occurred. -- Where appellant
testified that he was making a side trip to take time off;
that he was on his way to visit a friend when the accident
happened; that he left the route by deviating onto another
interstate; and that he was at least 100 miles out of route
when he had the accident, there was substantial evidence to
support the finding of the administrative law judge, which was
adopted by the Commission, that the appellant's personal side
trip was a "substantial deviation" from his business trip
and that appellant was "not in the course of his employment"
when the accident occurred.
6. Workers' compensation -- "personal-comfort doctrine" defined.
-- The "personal-comfort doctrine" covers employees who,
within the time and space limits of their employment, engage
in acts that minister to personal comfort and do not thereby
leave the course of employment, unless the extent of the
departure is so great that an intent to abandon the job
temporarily may be inferred, or unless, in some jurisdictions,
the method chosen is so unusual and unreasonable that the
conduct cannot be considered an incident of the employment;
the doctrine includes such incidental acts as eating,
drinking, sleeping, resting, washing, smoking, seeking fresh
air, coolness, or warmth.
7. Workers' compensation -- appellant's deviation substantial --
deviation not within bounds of "personal-comfort doctrine". --
Where the law judge found that the appellant's deviation was
"substantial," and this finding, adopted by the Commission,
was supported by substantial evidence, the appellate court
could not hold that this deviation was for "such incidental"
purposes as are within the bounds of the "personal-comfort
doctrine."
Appeal from Arkansas Workers' Compensation Commission;
affirmed.
The Whetstone Law Firm, P.A., by: Robert H. Montgomery, for
appellant.
Roberts Law Firm, by: Mike Roberts, for appellees.
Melvin Mayfield, Judge.
*ADVREP*CA3*
DIVISION II
CA 95-986
JUNE 12, 1996
SID LYTLE AN APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
APPELLANT COMMISSION
VS.
ARKANSAS TRUCKING SERVICES AFFIRMED
and GIBRALTAR NATIONAL
APPELLEES
Melvin Mayfield, Judge.
Sid Lytle has appealed a decision of the Workers' Compensation
Commission which held that he was not acting within the course of
his employment when his automobile accident occurred and therefore
his claim is not compensable.
The appellant, an over-the-road truck driver, testified that
he was injured on July 3, 1992, when he topped a hill on I-20
outside Meridian, Mississippi, and came upon an accident that had
already occurred. According to appellant's testimony, he was on
his way from Center, Texas, to Metamora, Illinois, to deliver a
load for his employer, the appellant. He said that he was
scheduled to be in Metamora four days later; that he had an extra
2 1/2 days; and that he was making a side trip to visit friends
when the accident occurred. After the visit, appellant planned to
go to Metamora and unload.
Appellant testified the appellee is not a routed carrier, and
he is paid a flat rate based upon the mileage for each trip. He
said his job is to pick up a load on time; get it there on time by
the easiest and best route; and that there are no set routes for
him to take. He testified further that the shortest route from
Center to Metamora is to take Highway 59 from Center to I-30, then
to I-40, then to I-55 and then straight up to Metamora which is
just outside of Peoria. He testified that he took that route on a
previous trip to Metamora passing up I-20, but on this trip he
deviated onto I-20 before reaching I-30 and was at least 100 miles
out of route when he had the accident.
Mark Bottoms, appellee's dispatch supervisor at the time of
the accident, testified that company policy is for the driver to
take the shortest route from Point A to Point B; to stay within
that route; and to deliver to the destination. He said the
appellee is a routed carrier which means you take the shortest
route; that the carrier routes the driver; and that it gives him
specific directions. He said the appellant deviated from his
specific route on July 3, 1992, when he deviated onto I-20 to
Meridian, Mississippi. Bottoms testified he gave the appellant the
dispatch on July 3, and appellant did not tell him he was going to
take time off to go to Meridian. He said it is the general
practice for a driver who has excessive time to call and if there
is something en route he wants to do or deviate, appellee is open
to working with the driver.
Appellee's "Policies, Procedures and Agreement" states that
all trucks are routed over specific routes and that a driver agrees
to accept all dispatch as given with no deviation from destination
or route specified.
On this evidence the law judge held appellant's injuries were
not job related; that appellant was traveling away from his
business route; and that his "clearly identifiable" personal side
trip was a "substantial deviation" from his business trip and not
in the course of his employment. The full Commission affirmed and
adopted the law judge's decision.
Appellant argues his claim is compensable under the "dual
purpose" doctrine because he was serving both a business and
personal motive en route to Meridian.
When reviewing a decision of the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the findings of
the Commission and affirm that decision if it is supported by
substantial evidence. Clark v. Peabody Testing Service, 265 Ark.
489, 579 S.W.2d 360 (1979).
The dual purpose doctrine is set forth in 1 Larson, The Law of
Workmen's Compensation, 18.00 (1990) as follows:
Injury during a trip which serves both a business
and a personal purpose is within the course of employment
if the trip involves the performance of a service for the
employer which would have caused the trip to be taken by
someone even if it had not coincided with the personal
journey. This principle applies to out-of-town trips, to
trips to and from work, and to miscellaneous errands such
as visits to bars or restaurants motivated in part by an
intention to transact business there.
Arkansas courts have recognized the "dual purpose" trip
doctrine. This rule was adopted by Arkansas in Martin v. Lavender
Radio & Supply, Inc. 228 Ark. 85, 305 S.W.2d 845 (1957), which
embraced the "dual purpose" trip doctrine as enunciated by Judge
Cardozo in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181
(1929). Our supreme court held Judge Cardozo's reasoning to be
persuasive and worthy of adoption and held:
"The decisive test must be whether it is the employment
or something else that has sent the traveler forth upon
the journey or brought exposure to its perils. * * * We
do not say that service to the employer must be the sole
cause of the journey, but at least it must be a
concurrent cause, * * *" and sufficient within itself to
occasion the journey.
228 Ark. at 92, 305 S.W.2d at 849.
The dual purpose doctrine is one exception to the "going and
coming" rule, which generally precludes recovery for an injury
sustained while an employee is going to or returning from his place
of employment; and a determination that a trip falls within this
exception does not end the inquiry but merely serves to label the
trip as either business or personal; deviations from the main
purpose require a separate inquiry. See Day v. Central Day Care,
Inc., 38 Ark. App. 241, 833 S.W.2d 783 (1992).
As stated in 1 Larson, The Law of Workmen's Compensation,
19.00 (1990):
An identifiable deviation from a business trip for
personal reasons takes the employee out of the course of
his employment until he returns to the route of the
business trip, unless the deviation is so small as to be
disregarded as insubstantial.
Here appellant testified that he was making a side trip to
take time off; that he was on his way to visit a friend when the
accident happened; that he left the route to Metamora by deviating
onto I-20; and that he was at least 100 miles out of route when he
had the accident.
We think there is substantial evidence to support the finding
of the administrative law judge, which was adopted by the
Commission, that the appellant's personal side trip was a
"substantial deviation" from his business trip and that appellant
was "not in the course of his employment" when the accident
occurred.
Appellant also argues that the "personal comfort doctrine"
applies. In 1A Larson, The Law of Workmen's Compensation, 21.00
(1990), Professor Larson states:
Employees who, within the time and space limits of
their employment, engage in acts which minister to
personal comfort do not thereby leave the course of
employment, unless the extent of the departure is so
great that an intent to abandon the job temporarily may
be inferred, or unless, in some jurisdictions, the method
chosen is so unusual and unreasonable that the conduct
cannot be considered an incident of the employment.
Section 21.10, which analyzes the "personal comfort problem"
discusses "such incidental acts as eating, drinking, sleeping,
resting, washing, smoking, seeking fresh air, coolness or warmth."
In the case at bar, the law judge found that the appellant's
deviation was "substantial" and we cannot say that this finding,
adopted by the Commission, is not supported by substantial
evidence. Therefore, we cannot hold that this deviation was for
"such incidental" purposes as discussed by Larson.
Affirmed.
Cooper and Stroud, JJ., agree.