{ "id": 6136599, "name": "Pam LEPARD and Ann Lepard v. WEST MEMPHIS MACHINE & WELDING and Liberty Mutual Insurance Company", "name_abbreviation": "Lepard v. West Memphis Machine & Welding", "decision_date": "1995-11-08", "docket_number": "CA 94-1356", "first_page": "53", "last_page": "59", "citations": [ { "type": "official", "cite": "51 Ark. App. 53" }, { "type": "parallel", "cite": "908 S.W.2d 666" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "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": "269 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712508 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0649-01" ] }, { "cite": "610 A.2d 1071", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1433538 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/pa-commw/148/0004-01" ] }, { "cite": "52 P.2d 1267", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1936, "opinion_index": 0 }, { "cite": "229 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702691 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0020-01" ] }, { "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": "31 Ark. App. 245", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141439 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "252" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ark-app/31/0245-01" ] }, { "cite": "661 S.W.2d 403", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6136734, 6136615 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/10/0034-01", "/ark-app/10/0028-01" ] }, { "cite": "10 Ark. App. 28", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136615 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/10/0028-01" ] }, { "cite": "40 Ark. App. 120", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138147 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0120-01" ] }, { "cite": "38 Ark. App. 223", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140469 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0223-01" ] }, { "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": "30 Ark. App. 221", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141201 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0221-01" ] } ], "analysis": { "cardinality": 613, "char_count": 11242, "ocr_confidence": 0.829, "pagerank": { "raw": 1.6951344960967648e-07, "percentile": 0.699893507304866 }, "sha256": "9d72bf80115c7aa87d118a3a34f4cb1bcf0fdd1bbb0e251ce978c294af165687", "simhash": "1:51459900c9b7721a", "word_count": 1926 }, "last_updated": "2023-07-14T22:00:35.333550+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Mayfield, JJ., agree." ], "parties": [ "Pam LEPARD and Ann Lepard v. WEST MEMPHIS MACHINE & WELDING and Liberty Mutual Insurance Company" ], "opinions": [ { "text": "John B. Robbins, Judge.\nOn July 17, 1992, a train collided with a vehicle being driven by West Memphis Machine and Welding employee Donald Ray Lepard, causing Mr. Lepard\u2019s death. Mr. Lepard\u2019s wife, Pamela Lepard, and former wife, Ann Lep-ard (on behalf of his minor child), brought a claim for workers\u2019 compensation benefits. The Workers\u2019 Compensation Commission denied benefits, ruling that compensability was precluded by the \u201cgoing and coming\u201d rule. Pamela Lepard and Ann Lepard now appeal, arguing that the Commission\u2019s finding that their claim was barred by the \u201cgoing and coming\u201d rule was not supported by substantial evidence. We affirm.\nThe \u201cgoing and coming\u201d rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990). The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967).\nWhen reviewing decisions from the Workers\u2019 Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings and affirm if supported by substantial evidence. Welch\u2019s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers\u2019 Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).\nThe relevant facts in this case are not in dispute. Mr. Lep-ard had been an employee of West Memphis Machine and Welding for several months prior to the accident. Approximately two months before the accident, Mr. Lepard and his wife were having transportation problems because they owned only one vehicle. Because of this dilemma, Mr. Lepard asked his employer if he could borrow a company truck for the purpose of getting back and forth to work. William Johnson, owner of West Memphis Machine and Welding, agreed to lend Mr. Lepard one of the company\u2019s trucks for this purpose. It was agreed that Mr. Lepard would purchase $25.00 of gas each week for the truck which was intended to equate the amount of gas used in his trips to and from work. Mr. Lepard also agreed to periodically clean and service the truck. On occasion, Mr. Lepard would run company errands while at work, and on those occasions Mr. Johnson would pay for the gas. Upon returning home from work, Mr. Lepard would park the truck and not drive it until time to go to work again.\nOn the day of the accident, Mr. Lepard telephoned Julie Smrt before driving the company truck home at the end of the work day. Ms. Smrt is Mr. Johnson\u2019s daughter and was a coworker of Mr. Lepard. Mr. Lepard told Ms. Smrt that he was about to leave work and asked if she wanted him to come by her house with her paycheck. Ms. Smrt responded that this was unnecessary and informed Mr. Lepard that she would come to the office and get it herself. However, Mr. Lepard told Ms. Smrt that he did not mind going out of his way and bringing it to her. After this conversation Mr. Lepard drove the truck to Ms. Smrt\u2019s home, gave her the paycheck, visited for about fifteen minutes, and proceeded to drive toward his house. About three blocks from his house, Mr. Lepard collided with a train and suffered fatal injuries. The Commission denied appellants\u2019 claim for death benefits.\nFor reversal, the appellants argue that the Commission erred in finding that their claim was barred by the \u201cgoing and coming\u201d rule. Although this rule ordinarily precludes compensation, the appellants correctly state that there are exceptions to the rule. These exceptions are outlined in Jane Traylor, Inc. v. Cooksey, 31 Ark. App. 245, 792 S.W.2d 351 (1990), as follows:\n(1) where an employee is injured while in close proximity to the employer\u2019s premises; (2) where the employer furnishes the transportation and to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and (5) when the employer compensates the employee for his time from the moment he leaves home until he returns home.\nThe appellants rely on the second and fourth exceptions for their argument. They contend that there was an exception to the \u201cgoing and coming\u201d rule because it was undisputed that Mr. Lepard\u2019s employer provided him transportation to and from work by furnishing him a truck for this purpose. Alternatively, the appellants argue that there was an exception to the rule in this case because Mr. Lepard was engaged in a \u201cspecial mission or errand\u201d at the time of his death.\nIn determining that an exception to the rule did not arise on the basis of the truck being owned by the employer, the Commission relied on the fact that there was no nexus between the travel and employment in this case. The appellants assert that this standard was erroneous as a matter of law. We disagree. In Rankin v. Rankin Constr. Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984), the claimant injured himself while driving home in a vehicle owned by his employer. That case is distinguishable because there the journey did not start from the employer\u2019s premises. Nevertheless, we stated that, in order to determine whether the claimant\u2019s injuries arose out of his employment, there must be a \u201cconnection, or nexus, between the travel and the employment.\u201d Similarly, we think that some nexus between the employment and travel must be present in order for a claimant to recover for injuries sustained on a trip from his employer\u2019s premises to his home.\nOne such nexus which could give rise to compens-ability would be if the employer provided the transportation as part of the employee\u2019s compensation, or if the employer benefited from the furnishing of transportation because the employee was perpetually \u201con call.\u201d See generally Arkansas Power and Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958). In the case at bar, the company truck was supplied by the employer as a pure gratuity, with no benefit accruing to the employer. The use of the truck was not part of Mr. Lepard\u2019s compensation and he was never \u201con call\u201d during the two months that he was driving the truck. He was simply able to use the truck to get back and forth to work because he and his wife had only one vehicle and his employer chose to help him with his problem, without the expectation of anything in return.\nAlthough this court has never specifically stated that the \u201cfurnishing of transportation\u201d exception to the \u201cgoing and coming\u201d rule does not apply when the transportation is furnished solely as a gratuity, we now take the opportunity to do so. In Arkansas Power and Light Co. v. Cox, supra, the supreme court quoted Venho v. Ostrander Railway and Timber Co., 52 P.2d 1267 (Washington 1936), as follows:\nWhen a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within \u2018the course of his employment,\u2019 as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. . . .\nThis exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.\nIn the instant case, the vehicle was not lent to Mr. Lepard for the mutual benefit of him and his employer, since his employer received no benefit. In addition, the appellee employer did not have a custom of providing transportation for its employees, nor did part of the employment agreement include the furnishing of transportation. The truck was being used gratuitously, and as such the fact that it was owned by the employer does not give rise to an exception to the \u201cgoing and coming\u201d rule. This principle has been applied in other jurisdictions, and we now adopt it. See Unity Auto Parts, Inc. v. Workman\u2019s Compensation Appeal Bd., 610 A.2d 1071 (Pa. Commw. 1991). In Williams and Johnson v. National Youth Corps, 269 Ark. 649, 600 S.W.2d 27 (1980), we stated that the mere fact that an accident occurs while an employee is riding in a vehicle owned by his employer.is not sufficient to support a finding of compensability. The fact that Mr. Lepard was driving his employer\u2019s truck at the time of his accident does not, in itself, render the accident compensable.\nThe appellant\u2019s remaining argument is that the Commission erroneously failed to find an exception to the \u201cgoing and coming\u201d rule on the basis that Mr. Lepard was engaged in a business errand in addition to the personal purpose of going home when he suffered the fatal accident. Specifically, Mr. Lepard contends that, when he delivered the paycheck to Ms. Smrt, he was engaging in business that benefitted his employer. We reject this argument because the evidence showed that Mr. Johnson did not instruct Mr. Lepard to deliver the check, nor was he even aware that Mr. Lepard was going to make the delivery. As far as Mr. Johnson was concerned, Mr. Lepard was off the clock when he left work on the day of the accident. Ms. Smrt testified that she did not ask Mr. Lepard to deliver the check, and that he did so as a friendly gesture. Clearly, West Memphis Machine and Welding did not benefit from the delivery of the check, particularly in light of the fact that Ms. Smrt had already planned to come in and personally pick up the check. In Jane Traylor, Inc. v. Cooksey, supra, we analyzed the issue of whether a \u201cdual purpose\u201d journey could give rise to compensation, and we stated:\nThe 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 the 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. (Quoting Martin v. Lavender Radio and Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957).)\nJane Traylor, Inc. v. Cooksey, 31 Ark. App. at 252, 792 S.W.2d at 354. In the instant case, the trip undertaken by Mr. Lepard provided no service to his employer, thus his subsequent accident was not compensable.\nWe find that substantial evidence supports the Commission\u2019s ruling, and we affirm.\nPittman and Mayfield, JJ., agree.", "type": "majority", "author": "John B. Robbins, Judge." } ], "attorneys": [ "James, Yeatman & Carter, PLC, by: Paul J. James, and Etoch Law Firm, by Louis A. Etoch, for appellants.", "Rieves & Mayton, by: William J. Stanley, for appellees." ], "corrections": "", "head_matter": "Pam LEPARD and Ann Lepard v. WEST MEMPHIS MACHINE & WELDING and Liberty Mutual Insurance Company\nCA 94-1356\n908 S.W.2d 666\nCourt of Appeals of Arkansas Division II\nOpinion delivered November 8, 1995\nJames, Yeatman & Carter, PLC, by: Paul J. James, and Etoch Law Firm, by Louis A. Etoch, for appellants.\nRieves & Mayton, by: William J. Stanley, for appellees." }, "file_name": "0053-01", "first_page_order": 75, "last_page_order": 81 }