Opinion
No. 42383.
October 1, 1962.
1. Workmen's compensation — injuries — going to or returning from work — rule — exception.
Generally, injuries received by employee while going to or returning from work are not sustained "in course of employment", and are not compensable.
2. Workmen's compensation — employer's motion to dismiss — impropriety of deciding case on.
Generally, it is improper for Workmen's Compensation Commission to decide compensation case on employer's motion to dismiss claim without hearing all facts. Secs. 6998-24, 6998-28, Code 1942.
3. Workmen's compensation — same — evidence — all reasonable inferences resolved in favor of claimant.
On motion by employer to dismiss compensation claim, all reasonable inferences deducible from evidence must be resolved in favor of claimant, and facts tendered by claimant are required to be accepted as true.
4. Workmen's compensation — same — when proper — when Commission should sustain.
Workmen's Compensation Commission should sustain employer's motion to dismiss compensation claim without hearing all facts only where denial is based on matters which are jurisdictional or in abatement or where, taking as true everything that claimant's evidence tends to show, claimant clearly fails to establish that he is entitled to compensation. Secs. 6998-24, 6998-28, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, J.
Watkins Eager, Jackson, for appellant.
I. The activities of the deceased, Layton, in going and coming to and from his place of work were all outside the course of his employment. Durr's Dependents v. Schlumberger Oil Well Surveying Corp., 227 Miss. 606, 86 So.2d 507; Tabb Co. v. McAlister, 243 Miss. 271, 138 So.2d 285; Sylvan v. Sylvan Bros., 225 S.C. 429, 82 S.E.2d 794; 58 Am. Jur., Workmen's Compensation, Sec. 220; 99 C.J.S., Workmen's Compensation, Secs. 232, 236.
II. If the employee Layton were to be considered in the course of his employment on the trip to and from work, he had deviated from his master's business at the time of the accidental death. Dowdle Pearson v. Hargrove, 222 Miss. 64, 75 So.2d 277; Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79 So.2d 825; Earnest v. Interstate Life Accident Insurance Co., 238 Miss. 648, 119 So.2d 782; Foxworth v. Florida Industrial Commission (Fla.), 86 So.2d 147; Hill v. Department of Labor and Industries, 173 Wn. 575, 24 P. 95; Lumbermen's Mutual Casualty Co. v. Dedmon (Tenn.), 264 S.W.2d 567; Prudential Life Ins. Co. of America v. Spears (Ind.), 118 N.E.2d 813; Rhea v. Overholt (Minn.), 25 N.W.2d 656; Vollmer v. City of Milwaukee, 254 Wis. 162, 35 N.W.2d 304.
III. The Circuit Court erred in reversing the Commission on a finding of fact which was supported by substantial evidence. Dr. Pepper Bottling Co. v. Chandler, supra; Erwin v. Hayes, 236 Miss. 123, 109 So.2d 156; Freeman v. Mississippi Power Light Co., 230 Miss. 396, 92 So.2d 658; Tanner v. American Hardware Corp., 238 Miss. 612, 119 So.2d 380; Dunn, Mississippi Workmen's Compensation Law, Sec. 179.
IV. The Circuit Court erred in considering matters on the appeal from the Commission which were not in evidence before the Commission, and which were not a part of the record on appeal. Federated Mutual Implement-Hardware Insurance Co. v. Spencer, 219 Miss. 68, 67 So.2d 878; Gavin v. Gavin (Miss.), 79 So. 197; Graham v. Graham, 214 Miss. 99, 58 So.2d 85; Hampton v. Burrell, 236 Iowa 79, 17 N.W.2d 110; Standard Oil Co. v. Marville, 201 Iowa 614, 206 N.W. 37; Tarr v. Tarr, 164 Md. 206, 164 A. 543; Wilder v. Currie, 231 Miss. 461, 97 So.2d 384; 3 Am. Jur., Appeal and Error, Secs. 692, 693; 4A C.J.S., Appeal and Error, Sec. 1210.
Pyles Tucker, Jackson, for appellee.
I. There was substantial evidence to support the finding of the attorney-referee, the Commission, and the Circuit Court, that the deceased employee was in the course of his employment as he travelled from his home to the job site on the day of his death, and the appellants cannot question this finding for the first time on the appeal to this Court. Allen's Dairy Products Co. v. Whittington's Dependents, 230 Miss. 285, 92 So.2d 842; Barkman v. Meyer, 12 N.J. Misc. Rep. 287, 171 A. 536; Brooks, Inc. v. Claywell, 215 Ark. 913, 224 S.W.2d 37; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737, 174 So. 550; Dixie Pine Products Co. v. Bryant's Dependents, 228 Miss. 595, 89 So.2d 589; Dolan Heating Co. v. Feverton, 181 Okla. 198, 73 P.2d 115; Indian Territory Illuminating Oil Co. v. Whitten, 150 Okla. 303, 1 P.2d 756; International Harvester Co. v. Harris (Okla.), 272 P.2d 1046; Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Mead Bros. v. State Industrial Commission, 144 Okla. 279, 291 P. 571; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; R.J. Allison, Inc. v. Boling, 192 Okla. 213, 134 P.2d 980; Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 666; Southern Security Co. of New York v. Cline, 149 Okla. 27, 299 P. 139; Vestal Vernon Agency v. Pittman, 219 Miss. 570, 69 So.2d 227; Wallace v. Copiah County Lumber Co., 223 Miss. 70, 77 So.2d 316; Weatherbee Electric Co. v. Duke (Okla.), 294 P.2d 298; Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So.2d 896; 39 C.J., Master and Servant, Sec. 1493(d) p. 1297; 99 C.J.S., Workmen's Compensation, Sec. 222(b) p. 745; A.L.I. Restatement of the Law (Agency), Sec. 236.
II. The Circuit Court was correct in holding that there is a complete absence of any proof or facts upon which a reasonable inference could be drawn that the employee Layton had deviated from the course of his employment and was upon a mission of his own at the time of his accidental death. Bituminous Casualty Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378; Bryan Bros. Packing Co. v. Murrah's Dependents, 234 Miss. 494, 106 So.2d 675; Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79 So.2d 825; Earnest v. Interstate Life Accident Insurance Co., 238 Miss. 648, 119 So.2d 782; Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391; L.B. Priester Son, Inc. v. Bynum's Dependents, 244 Miss. 185, 141 So.2d 246, 142 So.2d 30; M. W. Construction Co. v. Bugg's Dependents, 241 Miss. 133, 129 So.2d 631; Majure v. William H. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Mills v. Jones' Estate, supra; Naranja Rock Co. v. Dawol Farms (Fla.), 74 So.2d 282; Vestal Vernon Agency v. Pittman, supra; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141; 58 Am. Jur., Workmen's Compensation, Sec. 27; 99 C.J.S., Workmen's Compensation, Sec. 20b pp. 95-111; 100 C.J.S., Workmen's Compensation, Sec. 521 p. 493 et seq; 1 Larson, Workmen's Compensation Law, Sec. 2 et seq.
III. The Circuit Court correctly reversed the Commission by applying established legal principles to the undisputed facts in evidence. Buffalo Insurance Co. v. Purvis, 224 Miss. 70, 79 So.2d 532; Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858; Cole v. Tullos, 228 Miss. 815, 90 So.2d 32; Employers' Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456, 127 A.L.R. 461; Johnston v. Canton Flying Services, 209 Miss. 226, 46 So.2d 533; L.B. Priester Son, Inc. v. Bynum's Dependents, supra; Williamson v. Inzer, 239 Miss. 707, 125 So.2d 77; Dunn, Mississippi Workmen's Compensation Law, Sec. 179 p. 145.
IV. The Circuit Court did not base its reversal on any matter outside of the record. Moore v. Sykes' Estate, 167 Miss. 212, 149 So. 789, 791; Wilder v. Currie, 231 Miss. 461, 97 So.2d 384.
Appellee, Mrs. Marguerite Layton, the claimant, is the widow of Joseph Lee Layton, deceased. Her claim for death benefits under the Workmen's Compensation Act was denied by the attorney referee, a facility of the Workmen's Compensation Commission, who sustained a motion to dismiss made by the employer and insurance carrier, appellants, after claimant presented her evidence. The Commission affirmed this order denying compensation. Miss. Code 1942, Rec., Sec. 6998-01. The circuit court reversed the Commission and remanded the case to it for a further hearing. We affirm the circuit court's judgment insofar as it reversed and remanded this claim to the Commission for a further hearing, but, in view of the incompleteness of the record, express no views on the factual and legal conclusions of that court at this stage of the proceedings.
Layton was a carpenter, doing special finishing work on houses constructed by appellant, Scott Builders, Inc. He was hit by another automobile while driving in his own car to work. According to the testimony of the claimant's witnesses, he had in his car at the time certain blueprints and saws on which he had worked the night before, and which he was taking to the job-site. On the route he pulled his car partly over on the side of the highway, got out, and was walking across the highway when a car hit him.
(Hn 1) Hence the issues involve, first, the question of whether he was in the general course of his employment while going to work, within an exception to or qualification upon the general rule, that injuries received by an employee while going to or returning from work are not incident to the employment; and second, assuming he was in the course of employment, whether there was a deviation from it of more than insubstantial nature. Six to eight feet from his body was found a wallet. The record does not indicate to whom it belonged. Nor is the record clear as to the regularity of work Layton did at home for the employer, whether he was paid separately for that work, whether home work was significant or essential for him to perform his other duties, and the significance of the presence in his car of the blueprints and saws. A full development in a hearing of these and other issues, by both appellants and appellee, would furnish the Commission and this Court with a more sound factual basis on which to decide this apparently close case.
The basic dual purpose rule, as formulated by Judge Cardozo in Marks v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), would be relevant for consideration on a full record. See 1 Larson, Workmen's Compensation Law, Secs. 18.00-18.44; Durr v. Schlumberger Oil Well Surveying Corporation, 227 Miss. 606, 86 So.2d 507 (1956) (citing with approval the test in Marks v. Gray). On deviations, see 1 Larson, Secs. 19.00-19.63.
(Hn 2) This case illustrates the general impropriety of the Commission deciding a case on a defendant's motion to dismiss a claim, without hearing all of the facts. This is the second case reaching this Court which went off on a motion to dismiss. In L.B. Priester and Son, Inc. v. Dependents of Bynum, 141 So.2d 246, 142 So.2d 30 (Miss. 1962), the Commission sustained the employer's motion to dismiss the claim. It was reversed by the circuit court, which in turn was affirmed by this Court, and the cause was remanded for a full hearing on the merits. There was necessarily considerable delay in final disposition of that case. Here Layton was killed on October 20, 1959, and his widow filed her claim in March 1960. Yet there has never been a full hearing on the matter and this cause, under our affirmance of the circuit court, is being remanded to the Commission for full development of the facts. In a somewhat different posture was Holman v. Standard Oil Co., 242 Miss. 657, 136 So.2d 591 (1962), where the Commission originally reversed the referee and ordered a full hearing. Thereafter defendants declined to introduce any further testimony.
(Hn 3) Unless denial is based on matters which are jurisdictional or in abatement, the Workmen's Compensation Commission ordinarily should not dismiss a claim on a motion to dismiss, where it has not heard all of the evidence pertinent to the issues. The Commission is authorized to make such investigation and conduct such hearing "as best to ascertain the rights of the parties." Miss. Code 1942, Sec. 6998-28. It may make such investigations as it deems necessary. Code Sec. 6998-24. The statutes presuppose generally a full hearing on the merits, not dismissal on the pleadings and claimant's evidence. On such a motion, all reasonable inferences deducible from the evidence must be resolved in claimant's favor. Facts tendered by claimant are required to be accepted as true. 100 C.J.S., Workmen's Compensation, Sec. 422.
(Hn 4) We do not say that a motion to dismiss is never proper, but the Commission should sustain such a motion only under the above-stated circumstances, or where, taking as true everything claimant's evidence tends to show, claimant clearly fails to establish that he is entitled to compensation. See 101 C.J.S., Workmen's Compensation, Secs. 782, 788, 790. The usual effects of sustaining motions to dismiss have been to delay final disposition of compensation cases and to work hardships upon litigants on both sides, whichever untimately may be entitled to prevail. See Karr v. Armstrong Tire and Rubber Co., 216 Miss. 132, 61 So.2d 789 (1953) (reversing and remanding for full hearing on loss of wage-earning capacity).
The judgment of the circuit court, reversing the order of the Commission and remanding the matter to it for further hearing, is affirmed.
Affirmed.
Lee, P.J., and Kyle, McElroy and Rodgers, JJ., concur.