Opinion
No. 39922.
February 13, 1956.
1. Workmen's Compensation — evidence — claimant's injury not in course of employment.
In workmen's compensation case, evidence supported finding that injury to claimant occurred at a time when he was not acting in the course of his employment.
Headnote as approved by Arrington, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, Judge.
Morse Morse, Poplarville, for appellant.
I. The insurance company is estopped to deny that the policy issued by it to Stanford and McCormick covered Roy Sam Stevens, even though he was an employee of Harold Stevens, as they collected a premium on stumps including his wages. Sec. 6998-40, Code 1942.
II. The deceased, Roy Sam Stevens, was in the course and scope of his employment, at the time of his death, as an employee of Harold Stevens. Allison v. Brown Horsch Insulation Co. (N.H.), 102 A.2d 493; Texas Employers' Assn. v. Kentwood (Tex.), 199 S.W.2d 806, 808-09; Soden v. Public Service Transp. Co., 4 N.J. Misc. 817, 134 A. 560, 103 N.J.L. 713, 137 A. 437; Baltimore Steel Co. v. Burch, 187 Md. 209, 49 A.2d 543; Griffith v. Goforch, 184 Tenn. 56, 195 S.W.2d 33, 38; Clark v. Village Hemingford, 147 Neb. 1044, 26 N.W.2d 15, 22; Hopwood v. City of Pittsburg, 152 Pa. Super. 398, 33 A.2d 658; C.F. Lytle Co. v. Whipple, 156 F.2d 155; City Ice Fuel Co. v. Korlinsky, 33 Ohio App. 42, 168 N.E. 475; Connor Co. v. Industrial Comm., 374 Ill. 105, 28 N.E.2d 270; Green v. District Court, 145 Minn. 96, 176 N.W. 155; Griffiths S.S. Co. v. Marshall, 56 F.2d 665; Vulmer v. S.S. Baluchistan, 27 B.W.C.C. 399, 50 Ll. L. Rep. 39; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551; Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562; Martin v. City of Boddeford, 138 Maine 26, 20 A.2d 715; Evans v. Louisiana Gas Fuel Co., 19 La. App. 529, 140 So. 245; Shelby Mfg. Co., Inc. v. Harris, 112 Ind. App. 627, 44 N.E.2d 315; American Mutual Liability Ins. Co. v. Industrial Accident Comm., 78 Cal.App.2d 493, 178 P.2d 40; O'Reily v. Roberto Homes (N.J.), 107 A.2d 9; Sec. 6998-04, Code 1942; Chap. 266 Sec. 13, New Hampshire Compensation Act (Laws of 1947); Vol. I, Larson's Workmen's Comp. Law, Sec. 19.25 p. 498.
III. The defense of intoxication is an affirmative defense which must be pleaded to be available; failure to plead waived affirmative defenses. Lamar v. Williams, 39 Miss. 342; 58 Am. Jur., Sec. 439 p. 859; Vol. II, Larson's Workmen's Comp. Law, Sec. 78.70 p. 286; Small's Workmen's Comp. Law of Indiana (Bobbs-Merrill 1st ed. 1950), Sec. 10 p. 488.
IV. The claimant, Harold Stevens, was in the course and scope of his employment since he was attempting to serve the interest of the master, in his mission to the County Line Club. Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Moody v. Baxley, 158 Fla. 357, 28 So.2d 325-26; National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723; 58 Am. Jur., Secs. 132, 231 pp. 666 (Note 9), 738; 71 C.J. 351; Vol. I, Larson's Workmen's Comp. Law, Secs. 18, 27.40 pp. 240, 421; Vol. VII, Schneider's Workmen's Comp. Text, Sec. 1660 (A).
Watkins Eager, Jackson, for appellees.
I. Harold Stevens was not acting in the course of his employment at the time of the accident. Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; E.L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So.2d 101; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Davis v. Price, 133 Miss. 236, 97 So. 557; Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So.2d 80; Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79 So.2d 825; Dowdle Pearson v. Hargrove, 222 Miss. 64, 75 So.2d 277; Finley v. State Industrial Accident Comm. (Oregon), 16 P.2d 648; Gillen v. American Employers Ins. Co., 68 F.2d 129; Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Liberty Mutual Ins. Co. v. Neal (Ga.), 191 S.E. 393; Mills v. Jones' Estate, 213 Miss. 680, 57 So.2d 496; Mississippi Products v. Gordy, 224 Miss. 690, 80 So.2d 793; Moody v. Baxley (Fla.), 28 So.2d 325; Natchez, C. M. RR. Co. v. Boyd, 141 Miss. 593, 107 So. 1; National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723, 65 So.2d 840; Nelson v. Slay, 216 Miss. 640, 63 So.2d 46; Olson Rug Co. v. Industrial Comm. of Wisconsin, 254 N.W. 519; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; State v. Industrial Comm. (Wis.), 31 N.W.2d 196; Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229; Wallace v. Copiah County Lumber Co., 223 Miss. 90, 77 So.2d 316; Yazoo M.V. RR. Co. v. Stansberry, 97 Miss. 831, 53 So. 389; 58 Am. Jur., Sec. 231 p. 738; Anno. 172 A.L.R. 378; Vol. I, Larson's Workmen's Comp. Law, Sec. 27.40 pp. 421, 426; Vol. VII, Schneider's Workmen's Comp. Text, Sec. 1668.
II. The injury to Roy Sam Stevens did not occur while Roy Sam Stevens was in the course of his employment. Kobe v. Industrial Acc. Comm. of Cal., 207 P.2d 849; Wallace v. Copiah County Lumber Co., supra.
A. There was a deviation from any transportation of Roy Sam Stevens to his home. Cole v. Borough of Keansburg, 9 A.2d 792; Davis v. Newsweek Magazine (N.Y.), 110 N.E.2d 406; Dowdle Pearson v. Hargrove, supra; Finley v. State Industrial Accident Comm., supra; Huhn v. Freeport Lodge, 41 N.Y.S.2d 231; Gughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Persons v. Stokes, 222 Miss. 479, 76 So.2d 517; Soden v. Public Service Transp. Co., 134 A. 560; Texas Employees v. Chittwood, 199 S.W.2d 806; Thornton v. La.-Miss. Pipeline Constr. Co., 214 Miss. 314, 58 So.2d 795; United Disposal Co. v. Industrial Comm. (Ill.), 126 N.E. 183; Vol. I, Larson's Workmen's Comp. Law, Secs. 19.25, 19.33.
B. If, on no other ground or for no other reason, Roy Sam Stevens was not in the course of his employment at the time of the accident in that he had deviated therefrom by becoming intoxicated. Coonce v. Farmers Ins. Exchange, 228 S.W.2d 825; Emery Motor Livery Co. v. Industrial Comm. (Ill.), 126 N.E. 143; O'Neil v. Fred Evans Motor Sales Co., 160 S.W.2d 755; Vol. I, Larson's Workmen's Comp. Law, Sec. 34; Vol. II, Schneider's Workmen's Comp. Text, p. 1031.
This is a workmen's compensation claim by appellant Stevens, which was denied by the Workmen's Compensation Commission and the Circuit Court of Pearl River County. (Hn 1) We think the case should be affirmed. No purpose would be served by detailing the facts. It is manifest that the injury to appellant occurred at a time when he was not acting in the course of his employment. The evidence reflected that appellant was riding with his brother in appellant's truck around 10 o'clock at night, after their work had been finished for the day. Appellant and his brother, in the meantime, had visited two or three beer "joints", and had been partaking of beer at these places. The Commission was warranted in finding that the appellant, in going to the County Line Club, was not acting in the course of his employment.
Affirmed.
All justices concur, except Kyle J., who took no part.