{ "id": 6646149, "name": "John Dale FISHER d/b/a DALE'S DRY WALL AND PAINT COMPANY v. Frank PROKSCH", "name_abbreviation": "Fisher v. Proksch", "decision_date": "1987-02-18", "docket_number": "CA 86-131", "first_page": "80", "last_page": "84", "citations": [ { "type": "official", "cite": "20 Ark. App. 80" }, { "type": "parallel", "cite": "723 S.W.2d 852" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "12 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135953 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0001-01" ] }, { "cite": "250 Ark. 960", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636819 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0960-01" ] }, { "cite": "250 Ark. 496", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636912 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0496-01" ] }, { "cite": "242 Ark. 486", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721042 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0486-01" ] }, { "cite": "167 N.E. 181", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1929, "pin_cites": [ { "page": "182-83" } ], "opinion_index": 0 }, { "cite": "251 N.Y. 90", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1988697 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/ny/251/0090-01" ] }, { "cite": "228 Ark. 85", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717703 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/228/0085-01" ] }, { "cite": "4 Ark. App. 161", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139433 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0161-01" ] }, { "cite": "9 Ark. App. 18", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136109 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0018-01" ] }, { "cite": "13 Ark. App. 199", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139899 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/13/0199-01" ] }, { "cite": "265 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664891 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0489-01" ] }, { "cite": "10 Ark. App. 254", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140886 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0254-01" ] } ], "analysis": { "cardinality": 504, "char_count": 7780, "ocr_confidence": 0.918, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3282106408520342 }, "sha256": "6c99d77c8d0923e7db5b80150b2c85d53b68150f8e8e1260f06a6348f9f749ed", "simhash": "1:1ccca49b091453da", "word_count": 1351 }, "last_updated": "2023-07-14T21:16:54.687302+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, C.J., and Cracraft, J., agree." ], "parties": [ "John Dale FISHER d/b/a DALE\u2019S DRY WALL AND PAINT COMPANY v. Frank PROKSCH" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is an appeal from the Workers\u2019 Compensation Commission. The claimant was injured in an automobile accident on his way to work while employed by appellant, John Dale Fisher, who was in the business of hanging and finishing sheetrock, under the name of Dale\u2019s Dry Wall and Paint Company. Appellant\u2019s principal place of business and the claimant\u2019s home were in Ashdown, Arkansas, but at the time of the accident the job site was Mt. Pleasant, Texas, some eighty to ninety miles from Ashdown. The appellant testified that his payroll on this job began at 7:30 a.m., even though the men did not usually get to the job site until around 10:00 a.m. Customarily the claimant and a co-worker rode to Mt. Pleasant in a van driven by Fisher\u2019s son, Harold D. (Buddy) Fisher.\nOn the date of the accident, Buddy had asked the claimant to drive the van so that Buddy could take his newly purchased truck to a repair shop in New Boston, Texas, which was on the direct route to Mt. Pleasant. They left Buddy\u2019s home about 7:00 a.m. with Buddy driving his truck and the claimant following him driving the van. Approximately fifteen minutes later, an oncoming car struck the left side of the van causing personal injuries to claimant.\nAt the hearing before the administrative law judge, the appellant testified he had sold the van to his son Buddy two days before the accident, but neither the law judge nor the Commission made a specific finding with respect to the ownership of the vehicle. Buddy testified that at the time of the accident there was a fifty-gallon barrel half full of texture, dry wall mud used in sheetrocking, in the van. Both appellant and his son testified that their hand tools, and those of the claimant, were also in the van at that time.\nThe law judge held that the claimant fell within the \u201cdual purpose\u201d exception to the \u201cgoing and coming\u201d rule and therefore his injuries were compensable. The full Commission affirmed and adopted the opinion of the administrative law judge as its own.\nIt was the Commission\u2019s duty to follow a liberal approach in determining whether the claimant received a compensable injury, Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984), and, on appeal, we must review the evidence in the light most favorable to the decision of the Commission and affirm if the decision is supported by substantial evidence, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Even though a preponderance of the evidence might indicate a contrary result, we must affirm if reasonable minds could reach the Commission\u2019s conclusion. Young v. Heekin Canning Co., 13 Ark. App. 199, 681 S.W.2d 419 (1985).\nThe going and coming rule provides that, since all persons are subject to the same street hazards while traveling, injuries sustained by employees going to and coming from work cannot ordinarily be said to arise out of and in the course of the employment within the meaning of the workers\u2019 compensation law. Chicot Memorial Hospital v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983). However, our courts have recognized a number of exceptions to this rule. See City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). Another rule, whether or not regarded as an exception, has been described in 1 Larson, Workmen\u2019s Compensation Law \u00a7 18.00 (1985) as follows:\nInjury 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.\nThis rule was adopted by Arkansas in Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957), where the court relied upon the case of Marks\u2019 Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in which Judge Cardozo stated:\nWhat concerns us here is whether the risks of travel are also risks of the employment. In that view, 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.\n. . . 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. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.\n167 N.E. at 182-83.\nThis rule has been approved in later cases. See Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967); Willis v. City of Dumas, 250 Ark. 496, 466 S.W.2d 268 (1971); Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971); and Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984). In the case at bar, the law judge relied upon Rankin v. Rankin Construction Co., supra, and concluded:\nAssuming, arguendo, that the claimant was indeed involved in a personal errand which consisted of doing a favor for Harold Fisher on the morning of his accident, the fact remains that he was driving a van which contained tools and work materials indigenous to the respondent\u2019s business, and vital to him in the performance of his business.\nThe appellant argues that the finding that the tools and work materials transported in the van were \u201cvital\u201d to the appellant\u2019s business is not supported by the record. It is contended that this was a relatively insignificant matter, done mostly for the employees\u2019 convenience, and should not be a sufficient basis for the application of the dual purpose rule. However, the claimant testified that the van contained \u201call of our tools and materials and everything that we carry to work.\u201d The appellant\u2019s son testified that there was a fifty-gallon barrel in the van that was \u201chalf full of texture, dry wall mud.\u201d The employer himself testified that the van was transporting some hand pumps that were used on the job and some knives, pans, and stuff that \u201cyou don\u2019t dare\u201d leave on the job. And when asked if the van contained hand tools \u201cother than just the ones that belonged to Buddy,\u201d the appellant said, \u201cwe more or less put all of our tools together.\u201d\nObviously, the claimant was serving his own purpose, as well as doing the appellant\u2019s son a favor, in driving the van to the job site; however, we think there is substantial evidence to support the finding that the claimant was also serving his employer by transporting \u201ctools and work materials\u201d that were \u201cvital\u201d to the performance of the employer\u2019s business. Even if the claimant had not gone to work on the day involved, there is substantial evidence to support a finding that the tools and materials would have been carried to the job site by someone for use by the appellant and his son.\nSo, there is substantial evidence to support the facts as found by the Commission and we believe the Commission is correct in its application of the dual purpose rule to those facts.\nAffirmed.\nCorbin, C.J., and Cracraft, J., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Wright & Chaney, P.A., by: Donald P. Chaney, Jr., for appellant.", "Hawkins & Metzger, by: Jay P. Metzger, for appellee." ], "corrections": "", "head_matter": "John Dale FISHER d/b/a DALE\u2019S DRY WALL AND PAINT COMPANY v. Frank PROKSCH\nCA 86-131\n723 S.W.2d 852\nCourt of Appeals of Arkansas Division II\nOpinion delivered February 18, 1987\nWright & Chaney, P.A., by: Donald P. Chaney, Jr., for appellant.\nHawkins & Metzger, by: Jay P. Metzger, for appellee." }, "file_name": "0080-01", "first_page_order": 102, "last_page_order": 106 }