{
  "id": 1737986,
  "name": "Lewellen v. William T. Collins Shows",
  "name_abbreviation": "Lewellen v. William T. Collins Shows",
  "decision_date": "1963-11-04",
  "docket_number": "5-3075",
  "first_page": "132",
  "last_page": "135",
  "citations": [
    {
      "type": "official",
      "cite": "237 Ark. 132"
    },
    {
      "type": "parallel",
      "cite": "371 S.W.2d 833"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T21:17:18.904164+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Lewellen v. William T. Collins Shows."
    ],
    "opinions": [
      {
        "text": "CarletonHarris, Chief Justice.\nThis is a Workmen\u2019s Compensation case, which involves a carnival worker. Rufus Y. Lewellen, alias Ernest Welch, was given employment on September 2, 1961, at Lincoln, Nebraska, by Grlen Joplin, general manager of appellee, William T. Collins Shows. He was assigned by Joplin to work on the \u2018 \u2018 scrambler ride. \u2019 \u2019 The carnival, from Lincoln, moved to Fayetteville, Arkansas, for its next showing, to be held at the fairgrounds. Lewellen arrived in Fayetteville on Saturday, September 9, in the late afternoon, and was injured some time between 11:00 p.m. and early Sunday morning, September 10. Claimant contended that he was injured while in the course of his employment, and was entitled to compensation. The claim was controverted and, though allowed by the referee, was disallowed by the full commission, which found that claimant had failed to establish that his injury arose out of and in the course of his employment. On appeal to the Washington County Circuit Court, the Commission ivas affirmed, and appellant has appealed to this court.\nNo intricate questions of law are involved in this appeal, and we are only concerned with whether the finding of the commission was supported by substantial evidence.\nLewellen testified that before leaving Lincoln on Friday morning, Joplin saw a mattress lying on the ground and told claimant to pick it up and put it in a particular truck, carrying other carnival equipment, and upon arriving in Fayetteville, to take the mattress out of the truck and put it under Joplin\u2019s house trailer. He traveled to Fayetteville \u2018 \u2018 on his own, \u2019 \u2019 riding part of the way Avith a man called \u201cSlim,\u201d Avho did not work for the carnival; \u201cI think he Avorked for someone that has a tent there.\u201d After arriving in Fayetteville, he helped put up the \u201ccook tent\u201d (not OAvned by the carnival, but privately operated). LeAvellen said that he saAv Joplin, Avho told him to get the mattress and \u201cput it under my tent, in my trailer. \u2019 \u2019 According to claimant, he did not perform this task right then, but ate supper before 10:00 o\u2019clock at Byrd\u2019s Diner, stood around for a Avhile and then decided to \u201cturn in.\u201d He then Avent to the truck to get the mattress for Joplin, endeavored to pull it out of the truck, but his foot slipped, and he fell, severely injuring his shoulder.\n\u201cWell, when I come to I Avas laying, kind of sticking up in the air, and I Avas doAvn there\u2014oh, my face was doAvn there on the ground, and it seemed like a bright light off and on. All of a sudden the ride Ave\u2019d been Avorking on, Scrambler, I could see that just Avhirling around and round, seemed like there Avas little girls, little kids Avas SAvinging Avay off, and I Avas\u2014I Avent to jump up, I Avent to raise up and I fell back. Then I Avent to begging for help, crying, screaming.\u201d\nThe Avitness estimated that it Avas close to midnight AAdien he fell.\nGordon McNeese testified that he Avas an employee of Leonard Guest at the \u201ccook\u201d tent, but was not an employee of William T. Collins ShoAvs; that LeAvellen volunteered to help put up the \u201ccook house\u201d tent, and Avorked for about an hour and a half, but Avas not paid for such Avork.\nJames Edward Dykes, an employee of the Collins sIioavs, testified that he saw LeAvellen early Saturday night, and that claimant had been drinking; that he saw him again around midnight and LeAvellen was drunk. The witness then stated that he Avent to sleep (in a bed Avhich he set up by the side of his truck) betAveen 12:30 and 1:00 in the .morning, and was awakened by someone \u201cmoaning that they\u2019d hurt their arm and their back; they\u2019d fell out of the truck. And I was tired and sleepy; I just told them to shut up and go on to sleep.\u201d Dykes said that the next morning he saw Lewellen at the \u201ccook house\u201d and the latter told him \u201cthat he Avas asleep; he Avas having a dream that some small kids was going to get on one of the rides; and he Avas getting off to put them on; and he fell out of the truck.\u201d\nGlenn Joplin, general manager of William T. Collins Shows, testified that after he had assigned LeAvellen to the \u201cScrambler Ride,\u201d no other duties or additional Avork was given claimant. He stated that before he left Lincoln, he instructed all employees of the carnival, Avho AArere not truck drivers, to report at 8:00 o\u2019clock on Sunday morning in Fayetteville; that from the time of leaving Lincoln on Friday morning until Sunday morning at 8:00, there were no duties whatsoever for LeAvellen to perform. Joplin testified that he saw claimant at his (Joplin\u2019s) trailer on Saturday between 6:00 and.7:00 P.M., Avhen claimant came to him, wanting money. He stated that LeAvellen was not on duty, and would haA^e been \u201cfired\u201d if on duty, since he could smell liquor on LeAvellen at that time. He denied telling claimant to get a mattress, or, in fact, directing LeAvellen to do anything from the time he left Lincoln. The witness stated that Sunday morning about 8:00 o\u2019clock, \u201che told me that he had been dreaming the night before and had dreamed about getting up, and Avalking out of the truck; he Avalked out, and he hurt hisself and wanted to know then if there Avas any way that I could Avork it in on the insurance to take him to the hospital. And I told him at that time that I had no insurance to cover him while he Avas off duty, but if he wanted to go to the hospital my nephew was fixing to go to town, and if he wanted to go to the hospital I would let my nephew take him up there, which he did. \u2019 \u2019\nJoplin testified that the transportation of the carnival employees, except truck drivers, was their own \u201cworry;\u201d further, that he had no connection with the \u201ccook house,\u201d which was operated entirely by Leonard Guest; that Lewellen had no business on the truck from which claimant told the superintendent that he had fallen.\nRobert Callan testified that he took Lewellen to the hospital, and that on the trip, he asked claimant how he was injured, and \u201che said he was sleeping at the back of the truck and had become excited and fell out.\u201d\nAs stated at the outset, the sole question before- this court is -whether there -was substantial evidence to support the finding of the commission. It is readily apparent that such evidence existed. For instance,\n1. Joplin denied that he told the appellant to get the mattress off the truck.\n2. Joplin testified that there were no duties for appellant to perform from Friday morning, September 8, until 8:00 o\u2019clock Sunday morning, September 10.\n3. Dykes testified that appellant stated that he fell out of the truck in his sleep.\n4. Callan stated that appellant told him that he had been sleeping in the back of the truck, had been drinking, and apparently became excited and fell out.\nThe commission\u2019s finding that appellant\u2019s injury did not occur during the course of his employment was supported by the evidence offered by appellees, which the commission had a right to believe.\nAffirmed.\nDr. Coy C. Kaylor testified that Lewellen \u201chad a collapsed lung on the right, and an acromioclavicular separation, fracture of the twelfth dorsal vertebra.\u201d\nThe duties of Lewellen here consisted of helping people on and off the ride, and helping to tear down and set up the ride.\nThis truck contained floorings for Dodger (small cars), one of the rides of the carnival, with which Lewellen had no connection nor duties.\nThe commission did not find that Lewellen was intoxicated.",
        "type": "majority",
        "author": "CarletonHarris, Chief Justice."
      }
    ],
    "attorneys": [
      "TV ade \u00e9 McAllister, for appellant.",
      "Greenhaw & Greenhaw, for appellee."
    ],
    "corrections": "",
    "head_matter": "Lewellen v. William T. Collins Shows.\n5-3075\n371 S. W. 2d 833\nOpinion delivered November 4, 1963.\nTV ade \u00e9 McAllister, for appellant.\nGreenhaw & Greenhaw, for appellee."
  },
  "file_name": "0132-01",
  "first_page_order": 154,
  "last_page_order": 157
}