Opinion
No. 38403.
May 19, 1952.
1. Workmen's Compensation — injury arising out of and in course of employment.
Tents erected by one of the employees were made available to such of the employees of a pipe line construction company as desired to use them between working hours as the work progressed in location. The working hours were from 8 a.m. to 4 p.m. and except within those hours each employee was free to go where he wished and to sleep elsewhere as some of them did. No charge or deduction was made on account of the tents. Claimant was severely burned during the night when the tent he was occupying caught fire. He was not then on any duty as an employee, nor was he performing any service or complying with any order of the employer. Held: That the injury did not arise out of and in the course of employment. Sec. 2 (2) Chap. 354 Laws 1948 as amended.
Headnote as approved by Alexander, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, Judge.
English Lindsey, for appellant.
I. The proof in this record shows as a matter of law and fact that the appellant's injury arose out of and in the course of his employment, and is therefore compensable under the Mississippi Workmen's Compensation Act. Allen v. D.D. Skousen Const. Co., 225 P.2d 452; Associated Indemnity Corp. v. Industrial Accident Comm., 18 Cal.2d 40, 45; Bountiful Brick Co. v. Giles, 276 U.S. 154; Brown v. United Services for Air, Inc., et al., 78 N.Y. 37; Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469; Caswell's Case, 26 N.E.2d 325; Cudahy Packing Co. v. Parramore, 263 U.S. 418; Daily v. City of Gulfport, (Miss.), 54 So.2d 485; Deemer Lbr. Co. v. Hamilton, 52 So.2d 634; Fuller v. Katherine Gibbs School, Inc., et al., 98 N.Y.S.2d 734; F.W. Hughes Pty. Ltd. v. Mallyon, W.C.R. 8; Griffith v. Coles Bros., 165 N.W. 577, 1919F L.R.A. 92; Nick Guiliano, et al., v. Daniel O'Connell Sons, 105 Conn. 695, 136 A. 677, 56 A.L.R. 504; Horovitz on Compensation, p. 112; Hunter v. Summerville, 205 Ark. 463; Kaplan v. Alpha Epsilon Phi Sorority, 42 N.W.2d 342; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470; Lepow v. Lepow Knitting Mills, Inc., 288 N.Y. 377; Lucedale Veneer Co. v. Rogers, 43 So.2d 148; Sec. 6998-02(11) Code 1942; Musson, et al. v. Industrial Comm., et al., 248 Wis. 192, 21 N.W.2d 265; NACCA Law Journal, Vol. 3, p. 64, Vol. 7, p. 75; Schneider, Workmen's Compensation Text, Vol. 7, p. 92, Vol. 6, p. 10; Souza's Case, 55 N.E. 611; Thom v. Sinclair, Ac 127, p. 142; Truck Ins. Exchange v. Industrial Accident Commission, 27 Cal.2d 813, 167 P.2d 705; Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So.2d 411.
Wallace, Greaves Wallace, for appellees.
I. The judgment appealed from affirming Workmen's Compensation Commission's finding and order denying compensation is sustained by substantial evidence and should not be disturbed on appeal. Barry v. Sanders Co., (Miss.), 52 So.2d 493; Deemer Lbr. Co. v. Hamilton (Miss.), 52 So.2d 634; Brown Buick Co. v. Smith's Estate (Miss.), 52 So.2d 664; Mills v. Barrett, (Miss.), 56 So.2d 485; City of Meridian v. Davidson, (Miss.), 53 So.2d 48; Board of Supervisors v. McCormick, 207 Miss. 216, 42 So.2d 177; Nelson v. State, ex rel. Quigg, 156 Fla. 189, 23 So.2d 136; Commissioner U.S. Employees Compensation Commission, et al., v. Pletz, 317 U.S. 383, 87 L.Ed. 348; Virginia Electric Power Co. v. National Labor Relations Board, 319 U.S. 533, 87 L.Ed. 1568; Sec. 4, Chap. 412, Laws 1950.
Conflict in the evidence, if any, does not alter above stated proposition — Bordeaux v. Westmoreland, (Miss.), 23 So.2d 304; Bounds v. Brown, 201 Miss. 564, 29 So. 657.
II. The judgment denying compensation appealed from is sustained by applicable law, as well as by substantial evidence, and should not be disturbed on appeal. Barry v. Sanders Company, (Miss.), 52 So.2d 493; Guiliano v. Daniel O'Connell's Sons, 105 Conn. 695, 136 A. 677, 56 A.L.R. 504; Associated Employers' Reciprocal v. Simmons, (Tex.), 273 S.W. 686; Wallace v. Texas Indemnity Ins. Co., (Tex.), 94 S.W.2d 1201; Meehan v. Marion Manor Apartments, (Mich.), 9 N.W.2d 534; Gaustel v. Michigan Cent. R. Co., 160 N.W. 484, L.R.A. 1917D 69; Peoples-Pittsburgh Trust Co. v. Fidelity Trust Co., (Penn.), 27 A.2d 445; Pisko v. Mintz, (N.Y.), 186 N.E. 434; Lauterbach v. Jarett, 189 App. Div. 303, 178 N.Y. Supp. 480; Edward v. Industrial Comm., (Utah), 48 P.2d 459; Brusven v. Ballord, (Minn.), 14 N.W.2d 861; Eagles Home Assn. v. Industrial Accident Comm., (Cal.), 35 P.2d 591; Associated Oil Co. v. Industrial Accident Comm., 217 P. 744; Savoy Hotel Co. v. Industrial Board (Ill.), 116 N.E. 712; Danville U. C.R. Co. v. Industrial Comm., (Ill.), 138 N.E. 289; Warren v. Globe Indemnity Co., (La.), 46 So.2d 66; Philbin v. Hayes, (English case), 87 L.J.K.B.N.S. 779 11 B.W.C.C. 85-C.A.; Bryan v. T.A. Loving Co. Associates, N.C.), 24 S.E.2d 751; Vause v. Vause Farm Equipment Co., (N.C.), 63 S.E.2d 173; 58 Am. Jur., Sec. 209, pp. 716, 717, Sec. 210, p. 717, Sec. 437, p. 858; Horovitz on "Workmen's Compensation", p. 165; Sec. 4, Chap. 412, Laws 1950.
Employer's right of control over servant essential to relation of employer and employee. Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
III. Reference to brief for appellant.
Relation of employer and employee arises out of contract, express or implied. Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Sec. 2 (4), Chap. 412, Laws 1950.
Workmen's Compensation law only imposes liability for injury arising out of and in the course of employment without regard to fault. Sec. 2 (2), Chap. 412, Sec. 4, Chap. 412, Laws 1950.
Workmen's Compensation law cannot convert contract of employment into life, health or accident insurance for employee. Ocean Accident Guaranty Corp. v. Industrial Comm., (Ariz.), 257 P. 641; Matlock v. Industrial Comm., (Ariz.), 215 P.2d 612; Barrentine v. Dierks Lbr. Coal Co., (Ark.), 181 S.W.2d 485; Luteran v. Ford Motor Co., (Mich.), 21 N.W.2d 825; Stout v. Sterling Aluminum Products Co., (Mo.), 213 S.W.2d 244.
This is an action under our Workmen's Compensation Act. Chapter 354, Laws of 1948, as amended. The original claim was denied by the attorney-referee whose finding was affirmed by the Commission and the circuit court, whence this appeal.
Appellee construction company was engaged in laying pipe lines and employed from thirty to fifty men. The claimant testified that on the particular work here involved there were employed about twelve or more men. As the work progressed the laborers shifted their housing as they saw fit in order to keep the locations accessible to them. Some time before the injury to claimant there arose a discussion regarding the practicability of procuring tents which could be moved from place to place. An employee of the company suggested that if they desired such he could get some used army tents for them. This was later done and two tents housing five cots each were sent to a place near the work at Gulfport. During the night the tent occupied by appellant caught fire from an improvised heating device placed therein by another occupant. This device consisted of a burning flare over which a bucket had been placed. The appellant suffered severe burns, and the injury and disability resulting therefrom are made the basis of his claim to compensation. The following facts are important and controlling. The working hours of the appellant were from 8 a.m. to 4 p.m. He was not required to use the tents and some of the employees slept elsewhere. The tents were erected by one of the fellow workers. No charge or deduction in wages was made on account of the tents, which were donated to such employees as cared to avail of them. At the time of the injury appellant was off duty and free to go where he wished. He was not performing any service or complying with any order of the employer. The injury did not arise "out of and in the course of employment". Section 2(2) Chap. 354, Laws of 1948, as amended.
It is argued that the use by the employees was a convenience to the appellant as well as to the employees; that the foreman had warned them of the dangers of fire; and that the company knew that the men would go home if it had not made such arrangements. This view was only the expression of the claimant and was denied by the foreman. They had not theretofore been so housed and had found accommodations, some makeshift, at other locations. These considerations are not here controlling in view of the circumstances stated above. Use of the tents was not a part of the general custom or practice of the appellant. It neither had nor exercised control or supervision over the workers after the end of the work period.
A large group of cases have rewarded the resourcefulness of counsel. It may be conceded that the law under similar statutes is in a state of flux and controlling principles must be sorted out from a mass of divergent factual backgrounds. Similar situations have been grouped under a category denominated "bunk house cases", which are further subdivided according to whether other facilities are available, or whether owned and controlled by the employer, or whether there is an element of compulsion in their use. We need not array the conflicting cases against each other or trace the reasoning processes which have led to opposing conclusions. From these we are content to select and cite as typical and in accord with our views Guiliano v. Daniel O'Connell's Sons, 105 Conn. 695, 136 A. 677, 678, 56 A.L.R. 504. In denying recovery, it was there stated; "When the employee at the close of his day's work leaves the premises of his employer and passes beyond the area which the employer has expressly or impliedly made incidental to his employment, he is no longer in the course of his employment because its period has ended. When the employer provides him with lodging and requires him to occupy it, during his use of it he will be within the period of his employment when in such occupation, and his use of the lodging will be an incident of his employment, for he is there in compliance with his employers' orders, and, while he obeys these and does not embark upon a frolic or business of his own, he must be held to be in the course of his employment.
"When, however, the employer says to the employee, after his day's work is done, `you may grind your axe upon my wheel,' the employee in accepting this proffer is not in the course of his employment, for that has ceased; he is fullfilling, not the duties of his employment, but his own personal desire. Privileges such as this, though they would not have been accorded him unless he had been in the service of his employer, cannot be held to be incidents of his employment. If when these claimants had finished their day's work at 5:30 and left their employers' premises and gone to a lodging house kept by a stranger to their employment, it could not be maintained that they were, while there, in the course of their employment. The sleeping of the claimants in the barn is wholly dissimilar to the necessary but minor interruptions in the course of the day's work, or to the privileges accorded by the employers to the employee during a noon hour for his own benefit. These all occur during the progress of the work, not after its cessation. The injury to these claimants occurred seven hours and more after the day's work was ended, in a lodging which the employers, for their own convenience, furnished them. It was optional with them whether they made use of this privilege or not. The employers did not expressly include this privilege within the terms of their employment, nor did they impliedly do so; the facts agreed upon show that they never intended to include this as an incident of the employment. We have never held that the employee continued in the course of his employment after the day's work was done, unless the employment was continuous, or the work incident to it, and the [injury] occurred shortly after the day's work had ended." Edwards v. Industrial Co., of Utah, 87 Utah 127, 48 P.2d 459; Wallace v. Texas Indemnity Co., Tex. Civ. App., 94 S.W.2d 1201.
Affirmed.
Roberds, P.J., and Lee, Holmes and Arrington, JJ., concur.