{ "id": 1734328, "name": "McCollum v. Rogers", "name_abbreviation": "McCollum v. Rogers", "decision_date": "1964-10-19", "docket_number": "5-3341", "first_page": "499", "last_page": "514", "citations": [ { "type": "official", "cite": "238 Ark. 499" }, { "type": "parallel", "cite": "382 S.W.2d 892" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "212 Ark. 871", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470426 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/212/0871-01" ] }, { "cite": "205 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488131 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0463-01" ] }, { "cite": "221 S. W. 2d 282", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "215 Ark. 665", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464522 ], "opinion_index": 0, "case_paths": [ "/ark/215/0665-01" ] }, { "cite": "206 Ark. 1045", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485127 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/1045-01" ] }, { "cite": "217 P. 2d 922", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1950, "opinion_index": 1 }, { "cite": "97 Cal. App. 2d 380", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2279131 ], "year": 1950, "opinion_index": 1, "case_paths": [ "/cal-app-2d/97/0380-01" ] }, { "cite": "328 Mo. 112", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8736237 ], "weight": 2, "year": 1931, "pin_cites": [ { "parenthetical": "traveling salesman asphyxiated while changing-tire in home" }, { "parenthetical": "traveling salesman asphyxiated while changing-tire in home" } ], "opinion_index": 1, "case_paths": [ "/mo/328/0112-01" ] }, { "cite": "198 N. W. 948", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1924, "pin_cites": [ { "parenthetical": "decedent, a traveling salesman, fearing batteries would freeze in very cold weather, went home to test them in own garage, where he was asphyxiated" } ], "opinion_index": 1 }, { "cite": "227 Mich. 258", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1688974 ], "year": 1924, "pin_cites": [ { "parenthetical": "decedent, a traveling salesman, fearing batteries would freeze in very cold weather, went home to test them in own garage, where he was asphyxiated" } ], "opinion_index": 1, "case_paths": [ "/mich/227/0258-01" ] }, { "cite": "147 Atl. 11", "category": "reporters:state_regional", "reporter": "A.", "year": 1929, "pin_cites": [ { "parenthetical": "decedent asphyxiated in own car preparing to go on trip to collect bills" } ], "opinion_index": 1 }, { "cite": "74 So. 2d 103", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 10039334 ], "year": 1954, "pin_cites": [ { "parenthetical": "claimant injured crossing road to board company truck, which picked up employees in neighborhood each morning as driver saw them, no particular assembly point being designated" } ], "opinion_index": 1, "case_paths": [ "/so2d/74/0103-01" ] }, { "cite": "19 N. E. 2d 1008", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 1 }, { "cite": "280 N. Y. 173", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2035727 ], "year": 1939, "opinion_index": 1, "case_paths": [ "/ny/280/0173-01" ] }, { "cite": "8 N. W. 2d 466", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1943, "opinion_index": 1 }, { "cite": "114 A. 150", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "96 N. J. Law 103", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 199100 ], "opinion_index": 1, "case_paths": [ "/njl/96/0103-01" ] }, { "cite": "201 N. W. 240", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "185 Wis. 311", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8692333 ], "opinion_index": 1, "case_paths": [ "/wis/185/0311-01" ] }, { "cite": "145 N W. 238", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "156 Wis. 68", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8686123 ], "opinion_index": 1, "case_paths": [ "/wis/156/0068-01" ] }, { "cite": "142 A. 201", "category": "reporters:state_regional", "reporter": "A.", "year": 1928, "opinion_index": 1 }, { "cite": "107 Conn. 502", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1533368 ], "year": 1928, "opinion_index": 1, "case_paths": [ "/conn/107/0502-01" ] }, { "cite": "216 Ark. 950", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614170 ], "weight": 2, "year": 1950, "opinion_index": 1, "case_paths": [ "/ark/216/0950-01" ] }, { "cite": "233 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691605 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "362" } ], "opinion_index": 1, "case_paths": [ "/ark/233/0360-01" ] }, { "cite": "212 Ark. 875", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 }, { "cite": "208 S. W. 2d 772", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1470410 ], "year": 1948, "opinion_index": 1, "case_paths": [ "/ark/212/0822-01" ] }, { "cite": "135 F. 2d 260", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3660207 ], "weight": 2, "year": 1943, "pin_cites": [ { "parenthetical": "claimant injured crossing street to board company truck which picked him up morning at 7:00 A.M.; free transportation found to be a part of compensation, since it saved claimant $5 per day in transportation costs" } ], "opinion_index": 1, "case_paths": [ "/f2d/135/0260-01" ] }, { "cite": "212 Ark. 871", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470426 ], "opinion_index": 1, "case_paths": [ "/ark/212/0871-01" ] }, { "cite": "205 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488131 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/205/0463-01" ] } ], "analysis": { "cardinality": 1232, "char_count": 30947, "ocr_confidence": 0.475, "pagerank": { "raw": 3.4500035171172106e-07, "percentile": 0.8801150182887111 }, "sha256": "28744a0d009a3e43adb0e873a730f3733adb0f510dfcdabcc5258b6f0ebabeba", "simhash": "1:9d81d0c1fdb64165", "word_count": 5282 }, "last_updated": "2023-07-14T18:48:57.788571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., not participating. McFaddin, J., concurs. Johnson, J., dissents." ], "parties": [ "McCollum v. Rogers" ], "opinions": [ { "text": "George Rose Smith, J.\nThis is a claim filed by the appellees, the widow and children of Orvis Noel Rogers, for death benefits under the workmen\u2019s compensation law. The Commission denied the claim upon the ground that the ease falls within the \u201cgoing and coming rule,\u201d which exempts the employer from liability for an injury that occurs while the employee is traveling to or from his place of work. The circuit court reversed the Commission\u2019s decision, holding that the decedent\u2019s transportation was being furnished by his employer, so that the case comes within a recognized exception to the exclusionary rule. The single question is whether the Commission\u2019s decision is supported by any substantial evidence.\nRogers, a tractor driver, was one of a seven-man crew employed by McCollum in logging operations. Jim Garlington was the foreman of the crew. For a month or two before Rogers\u2019 death Garlington had been picking up Bogers and two other members of the crew and taking them to and from work daily in his pick-up truck. Two \u25a0other men in the crew provided their own transportation. The remaining two were truck drivers who drove their employer\u2019s trucks to and from work.\nBogers lived about a mile from Highway 167. It was his practice to drive his own car to the highway in the morning in time to meet Garlington at about 6:30. Bogers would leave his car by the highway and ride with Garlington to the logging site, a distance of nine miles or more. It was understood that if Garlington did not appear by 7:00 a.m. it meant that the crew would not work that day.\nOn the morning of Bogers\u2019 death the weather was bitterly cold, a few degrees above zero. Garlington decided that it was too cold to work in the woods and therefore made no attempt to pick up his passengers. 'There is evidence that Bogers drove to the highway as usual and kept his engine running and his heater operating while he waited. Apparently Bogers started to go back home when Garlington did not show up within the agreed time. At about 8:15 a mail carrier discovered Bogers\u2019 car stopped on the road at a point more than halfway along the return route to his home. The position of the car indicated that Bogers may have attempted to park on the righthand side of the road. The engine was still running, and Bogers\u2019 lifeless body was slumped over in the driver\u2019s seat. The cause of death was carbon monoxide poisoning. Mrs. Bogers testified that there was something wrong with the muffler on the car, but her husband had not indicated that the condition was dangerous.\nCounsel for the appellees contend that Garlington was acting for his employer in driving Bogers to and from work. From this premise it is argued that Bogers was also in the course of his employment while waiting in his own car beside the highway and that the onset of his asphyxiation must have taken place before he started to return to his home. We find it unnecessary to test this chain of reasoning, for there is substantial evidence to support the Commission\u2019s finding that Rogers\u2019 transportation was not being furnished by his employer.\nThe governing rule of law was applied in Cerrato v. McGeorge Contracting Co., 206 Ark. 1045, 178 S. W. 2d 247, and O\u2019Meara v. Beasley, 215 Ark. 665, 221 S. W. 2d 282. In both those eases the injury occurred while fellow employees were riding together, but the Commission found that the transportation was not being provided by the employer. In view of that fact we upheld the Commission\u2019s denial of compensation. On the other hand, in the cases principally relied upon by the appellees, Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, and Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 778, the Commission awarded compensation upon a finding that the employees\u2019 transportation was being furnished by the employer. We affirmed that finding. Thus there is no essential conflict in our decisions.\nIn the case at hand there is sufficient proof to support the Commission\u2019s conclusion that this particular arrangement was a matter between fellow employees, not imputable to their employer. G-arlington unquestionably owned the pick-up truck that he used in going to and from work. There is no proof that McCollum contributed anything to the expense of its operation. In fact, it does not appear that G-arlington\u2019s conduct in giving a ride to some of his crew involved any additional expense to himself, for he did not have to go out of his way to pick them up. McCollum, the employer, stated that he paid no part of Rogers\u2019 transportation expense. He did not care whether Rogers traveled to the highway in his own car, or walked, or rode with a neighbor. \u201cHe was just supposed to bring himself to work.\u201d The fact that two other members of this same crew provided their own transportation is contrary to the inference that the contract of employment contemplated transportation by the employer.\nWe do not discuss the various inferences and arguments that are relied upon by the appellees. These are matters that addressed themselves to the Commission. It is our duty to view the evidence in the light most favorable to that tribunal\u2019s findings. To affirm the circuit court\u2019s decision we should have to declare as a matter of law that fair-minded men could reach no conclusion except that the arrangement between Garlington and Rogers was actually chargeable to McCollum. Such an extreme position is not dictated by our prior decisions, liberal though they have been in this particular field. The Commission was free to conclude that Garlington voluntarily used his own vehicle to carry some of his crew to work at his own expense, with no prearrangement or participation on the part of McCollum. We are not permitted to set aside the Commission\u2019s decision upon a disputed question of fact.\nReversed.\nHarris, C.J., not participating. McFaddin, J., concurs. Johnson, J., dissents.", "type": "majority", "author": "George Rose Smith, J." }, { "text": "Jim Johnson, Associate Justice,\n(dissenting). I do not agree with the majority opinion. I would affirm the judgment of the circuit court. The logic of its ruling in my view cannot be refuted. The opinion of the learned judge is hereby quoted in full as it lucidly presents the basis of my dissent.\n\u201cThis court has no hesitancy in reversing the Commission in this case because the material facts are undisputed. Compensation thus resolves itself into a question of fact. Orvis Noel Rogers was a tractor driver of Gilbert R. McCollum, a lumber mill owner and logger, whoso Avoods crew at the time of Rogers\u2019 death was engaged in cutting a tract five miles north of Kingsland for McCollum\u2019s mill at Farindale. This tract was approximately twenty miles from the point on Highway 167 where Mc-Collum\u2019s Avoods foreman picked up Rogers by prearrangenient and invariable custom. The woods foreman, Jim Garlington, picked up \u00edavo other employees at another point on Highway 167 about 4. miles from where Rogers Avas picked up. Garlington Avas in complete charge of the woods crew and McCollum testified that whatever arrangements he made were \u2018satisfactory with him.\u2019\n\u2018 \u2018 This arrangement had been in effect for about two months, significantly since work on the Kingsland tract \u25a0had begun. In the Referee\u2019s opinion, adopted by the Commission, this arrangement was not considered to be an incident of the employment, but merely as an \u2018 arrangement between fellow employees\u2019. Such a view completely overlooks the fact that Garlington was in complete charge of the woods operations for Mr. Collum. Garlington was more than a fellow employee. He had the sole responsibility for the operation on which the deceased was employed. In all the arrangements he made and all that he did in carrying out these arrangements he was McCollum\u2019s alter ego. No other conclusion can be drawn from the evidence in this case.\n\u201cThere is another factor that is equally persuasive in my finding that the transportation provided by Garlington was company-furnished transportation and thus an incident of the employment. Rogers lived a considerable distance from the Kingsland tract. On a salary of $50 per week it is inconceivable that he would have been expected to furnish his own transportation, into the log woods. To have expected Rogers to drive his automobile 35 or 40 miles a day and support a family of seven on a salary of $50 per week is hardly likely. Mr. Garlington would have had great difficulty in maintaining a woods crew under such an arrangement. Quite obviously the monetary benefit of free transportation by his foreman into the distant log woods was an important consideration in the employment relationship. (See Ward v. Cardillo, 135 F. 2d 260 (D. C. 1943) infra.) It cannot be dismissed as \u2018an arrangement made between fellow employees of the respondent, and . . . not imputable to the respondent. \u2019\n\u201cThe arrangement for picking up Mr. Rogers was quite specific. He was to be at the point where the county road on which he lived intersected Highway 167 at 6:30 A.M. He was to remain at this location until 7:00 A.M. If Garlington had not arrived by then, it could be assumed -that he had decided not to work the crew because of weather conditions and Rogers could return home. There is a small clearing at the intersection and Rogers always waited there for Garlington. The various witnesses estimated this clearing to be from two-fifths to three-fourths of a mile from Rogers\u2019 home.\n\u201cOn Monday, January 14, the day before Rogers\u2019 death, the crew worked only part of the day because of the cold. Mr. McCollum saw Rogers in Farindalo at about 5:00 P.M. Rogers was specifically told that part of the crew would work the next day and that he could work. According to his wife, Rogers understood from, McCollum that he was supposed to work the next day, regardless of the cold, for he told her when they discussed the exceptional cold (8 degrees), \u2018But he told me to be there and I\u2019ve got to go.\u2019\n\u201cObviously McCollum did not tell his foreman, Garlington, that Rogers had been instructed to work the next day. Garlington got up around 5:30 A.M., went outside and decided it was too cold to work. Rogers had no \u2019phone and this decision was not communicated to him.\n\u201cRogers got up between 5:00 and 5 :30 and left home a few minutes after 6:00 A.M. A neighbor followed his car out to the clearing at the intersection and another neighbor at 6:20 or 6:25 A.M. saw his car in the clearing with the motor running. .Since his standing instructions were to remain at this point until 7:00 A.M., it must be assumed that he remained in the clearing, waiting for Garlington, until this time or shortly thereafter. He then started back to his home from the clearing. As stated above, this distance was estimated as between two-fifths and three-quarters of a mile. When he reached the turnoff from the county road to his home, he lapsed into unconsciousness. His car nosed off of the road into some little bushes. According to the undertaker the front end of the car was completely off the road as if he didn\u2019t turn far enough to the right. At about 8:15 or 8:30 A.M. the rural mail carrier found Rogers\u2019 lifeless body in the automobile. The motor was still running. \"While he went to notify Mrs. Rogers, the car ran out of gasoline and the motor stopped. Mrs. Woodrow Burford, a close neighbor of the Rogers, who lives to the left of the road leading to Rogers\u2019 home, heard and saw the Rogers car at the location where the mail carrier found it. It had its lights on and periodically the motor raced. She could not fix the time when the car reached this location except to say that it was between 6:30 and 7:30 A.M.\n\u201cThe undertaker testified that Rogers\u2019 skin had the reddish tint and his blood the bright red color that is characteristic of carbon monoxide poisoning. The referee\u2019s finding, adopted by the Commission, was that death occurred from this cause. Carhou monoxide poisoning is so common and has been so widely studied that we may take judicial knowledge of the mechanism by which it produces death in the human body. The gas is tasteless, colorless and odorless and is formed by burning carbon fuels in a deficiency of air or oxygen. The gas forms a relatively stable compound with haemoglobin, the part of the blood which carries oxygen from the lungs. The formation of this compound called carbonic oxide haemoglobin prevents the haemoglobin from carrying oxygen and asphyxiation results. Of course, it takes some time for this process to reach fruition. Here it undoubtedly began at the clearing where Rogers was waiting for his foreman, because he would have driven the short distance from the point at the clearing to the point where he became unconscious in about a minute. It would have required a longer period to build the deadly compound to a critical point in his bloodstream. It is common knowledge that carbon monoxide concentration builds faster in a stationary car than in one which is moving because some air is forced into a moving car.\n\u201cCONCLUSIONS OF LAW\n\u201cThe first legal question to be decided is whether the arrangement between the foreman Garlington and Rogers constituted company-furnished transportation. The referee and the Commission held that it did not and snclx holding formed the principal basis for a denial of compensation to the widow and five children. The holding however, overlooks such cases as Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579 (1943), and Blankenship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 772 (1948), where compensation was awarded under similar circumstances. In the former case the claimant was a timber cutter who received injuries while riding home from work in a truck. The employee lived about fifteen miles from where the work was being carried on, and at the hearing the employer when asked about the arrangement with his men as to transportation to and from work said: \u2018We had trucks going out ther\u00e9 and if they wanted to ride, they could.\u2019 This is quite similar to McCollum\u2019s testimony in the instant case. There are two other significant similarities to Hunter v. Summerville. In the latter case the truck ivas owned by a sub-contractor working on the same job. Secondly, the custom was for the employees to furnish their own transportation to a certain filling station where they would be picked up.\n\u201cIn the Blankenship case the employer actually owned the vehicle in question, but it was being driven on the day of the death of the claimant\u2019s decedent by an allegedly unauthorized employee. The court pointed out that for the exception to be applicable to the transportation arrangement need not be rigid nor clearly defined. It is only necessary that the transportation be furnished in some manner by the employer \u2018for the mutual benefit of himself and the workmen of facilitate the progress of the work.\u2019 The court at 212 Ark. 875-76 quoted:\n\u2018This 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 . . .\n\u2018 \u2018 \u2018 There are no rigid legal principles to guide the Deputy Commissioner in determining whether the employer contracted to and did furnish transportation to and from work. \u201cNo exact formula can be laid down which will automatically solve every case.\u201d (Citing cases.) Bach employment relationship must be pursued to discover whether the employer, by express agreement or by a course of dealing, contracted to and did furnish this type of transportation. . . .\u2019\n\u201cRespondents cite the case of Dickinson v. Central Construction Co., 233 Ark. 360, 344 S. W. 2d 599 (1961), a 4-3 decision affirming a denial of compensation by the Commission, where two employees were injured while being transported by their foreman to work from Camden to Pine Bluff. But this case may be easily distinguished. Sales, the foreman, while working in Pine Bluff on some construction jobs, had an apartment there, although his home was at Camden. The claimants also lived at Camden but ordinarily drove their own trucks to the job sites at Pine Bluff. Sales went home to Camden for Thanksgiving. Before leaving Pine Bluff on Wednesday he had not delivered checks to some of his employees and it was necessary for him to return the day after Thanksgiving to perform this duty. Since he had to go from Camden to Pine Bluff he invited claimants to leave their cars and ride with him. Thus, we had an isolated instance of transportation purely for the convenience of the claimants in which their employer had no interest and to which no approval had been given, express or implied, by contract or by custom.\n\u2018 \u2018 On the other hand, the transportation in the instant case was regular, daily transportation at an appointed time. It was by virtue of an arrangement made by the employer\u2019s woods foreman when the employer began cutting a tract at a considerable distance from Rogers\u2019 home. It had been in effect for two months, with the employer\u2019s knowledge and acquisence.\n\u201cThis court has no doubt hut that the Supreme Court would have reached a different result in the Dickinson case if Sales, the foreman, had by prearrangement transported the claimants each day from Camden to Pine Bluff with the tacit approval of the employer, instead of on one isolated occasion for their own convenience. In other words, this case pointed up the testimony of the. claimants \u2018that it had not been the custom of practice for the employer to furnish the transportation. \u2019 233 Ark. at 362. Therefore, the case at bar is factually akin to Hunter v. Summerville and Blankenship Logging Co. v. Brown, supra, rather than to Dickinson v. Central Construction Co. The former cases are binding on the first issue presented \u2014 whether the transportation was company-furnished. It follows then that the Commission erred, as a matter of law, in finding that the transportation was only \u2018an arrangement between fellow employees. \u2019\n\u201cThe second issue, only touched in passing by the referee and Commission, presents the major difficulty to this court. Even though the transportation here was company-furnished, did Rogers\u2019 death come within the ambit of that transportation? Virtually all jurisdictions recognize that company-f\u00farnished transportation constitutes an exception to the \u2018going and coming\u2019 rule. However, many jurisdictions hold that coverage does not begin until the claimant actually enters the company vehicle. Arkansas, however, is in the vanguard .of those jurisdictions applying a more liberal rule. Simply stated, the liberal rule is that when the employer furnishes the transportation, all the incidents related to meeting, boarding, waiting for, and leaving the employer\u2019s conveyance become compensation-covered incidents of the employment.\n\u201cLarson\u2019s textbook, the leading work on workman\u2019s compensation, builds its discussion of the liberal rule around the landm\u00e1rk Arkansas case, Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S. W. 2d 646 (1950). Larson says in Section 1740 of Workmen\u2019s Compensation Law:\n\u201cThe case which appears to have extended protection the furtherest involved a bus driver who had finished his day\u2019s work, and, pursuant to his privilege of riding home without charge on his employer\u2019s busses, had dashed diagonally across a city street to catch a bus that was about to leave. He was struck by a motorist, and Ms death was held compensable. The court put it this way:\n\u201c 'In effect the Company said to Owens, \u201cTake your pass and go across the street to our bus; your day\u2019s work has been, finished, and we are interested in seeing that you get home as expeditiously as possible.\u2019 \u201d\n\u201cLarson then cites several cases as being in accord with the Arkansas holding. One of these, Flanagan v. Webster, 107 Conn. 502, 142 A. 201 (1928), is almost on all fours with this case. The facts given in the opinion are as follows:\n1 \u2018 The commissioner made an award of compensation to the plaintiff claimant, from which defendants appealed. The superior court reversed the case upon the finding of the commissioner for the advice of this court. On December 23,1926, the plaintiff was and had been for less than two weeks prior to this date in the employ of the defendant employer and at work upon the state highway in the town of Chosire. The plaintiff lived in the village of West Chesire. The only way in which he could reach his work was through transportation furnished by the defendant employer in one of its trucks which stopped for him in the morning usually at a point on the state road and carried him to his place of work. It ordinarily came along in time to get the men to their work at 6:30 a.m. On the slated morning the plaintiff left his home and walked to the state road where the truck usually picked him up. It was late on this morning \u2022 the weather was cold and because of this the plaintiff walked along the road in order to keep warm and upon its left side. The truck came up with him, and stopped on the right-hand side of the road for him to board it. \"While plaintiff was crossing the highway to board the standing truck, he was struck by an automobile and sustained a fracture of the femur. The commissioner held upon these facts that the plaintiff when injured was doing something incidental to his employment, and that the injury arose out of and in the course of his employment. The defendants claimed that, as the plaintiff had not actually boarded the truck, he was not on premises controlled by the employer, and consequently, the injury did not arise out of and in the course of his employment.\u201d\nThe court\u2019s language, in granting compensation, is highly appropriate to the case at bar:\n\u201cThus the employer might designate the place where the automobile was to be boarded; it might be on private property or on a public highway. If the employee went to the designated place within a reasonable time prior, to the time when he was to board the automobile, he would, from the time he reached the designated place, be then carrying out the direction of his employer, and that direction would become an incident of the employment and a part of the means of transportation, just as a railway station, or a bus waiting room, is a necessary incident of the railway or busline. Similarly, when an employee is directed to report each morning at a given place, or to a certain person, to receive instruction as to where he is required to work that day, the relation of master and servant has been held to commence at the time he reported, and his employment to have begun at that time, and that the injury there after occurring, prior to the time of actually beginning work, was suffered in the course of his employment. Milwaukee v. Althoff, 156 Wis. 68, 145 N W. 238, L.R.A. 1916A, 327; Milwaukee v. Industrial Com., 185 Wis. 311, 201 N. W. 240. So it has been held that the fact that the injury occurs while the employee was in the act of boarding the train and not while being transported does not relieve the employer of liability for compensation. Fisher v. Tidewater Building Co., 96 N. J. Law 103, 114 A. 150. Nor does it relieve the employer where the employee is injured when upon his employer\u2019s premises and engaged in the preparation necessary for beginning the work of his employment. . . .\n\u201cIf the plaintiff had, when he walked from his home to the state road where his employer\u2019s truck usually picked him up, remained at this point, and was there injured while waiting for the truck, there could be no doubt that during the period plaintiff was waiting at this point he was in the course of his employment. His being at this point,, upon this finding, would have been an incident of his employment, and a fulfillment of the implied direction of his employer. Under the authorities we have cited the employee would be held to have been in the course of his employment.\n\u201cHere decedent\u2019s injury began at the designated spot where he was to await company-furnished transportation. Rogers reached this point at about 6:10 A.M. The weather was extremely cold (8-10 degrees). We know his motor was running at 6:25 A.M. We know it was still running about 8:15 A.M. when he was found dead in his automobile. He had started home from the clearing where he was supposed to wait until 7:00 A.M. and had lost consciousness.as he started to turn into the driveway to his home, two-fifths to three-fourths of a mile from the clearing. Though the insidious effect of the carbon monoxide rendered him unconscious, a minute or so after he left the clearing, we know that the deadly gas had begun to be absorbed into his blood stream while he was waiting at the spot designated by his foreman where he was to receive company-furnished transportation. So, the injury began while he was at this location. In this respect this case is no different from one of the other cases cited by Larson in Section 1740 as being in accord with Owens v. Southeast Arkansas Transportation Co., supra.\n\u201cIn that case, Radermacher v. St. Paul City Ry. Co., 8 N. W. 2d 466 (Minn. 1943), claimant, a car cleaner, had a ticket book entitling him to ride free on his employer\u2019s streetcars. While he was waiting for a streetcar in a \u2018safety isle\u2019, he was struck by a \u2018hit and run\u2019 driver. The injury was held to be compensable.\n\u201cAssume that while Rogers was waiting in the clearing, a \u2018hit and run\u2019 driver ran off the road, struck his car and killed. This would be exactly the Badermacher case. There is no difference in Rogers\u2019 being killed by a \u2018hit and run\u2019 driver and being asphyxiated by carbon monoxide, the deadly effects of which began when Rogers was parked at this location. Nor is the legal import changed, if Rogers ha'd been hit by a \u2018hit and run\u2019 driver and badly injured, but in order to get help, walked back down the road toward his home and collapsed and died before reaching there.\n\u201cOther cases awarding compensation in similar fact situations are: Sibler v. Lincoln-Alliance Bank & Trust Co., 280 N. Y. 173, 19 N. E. 2d 1008 (1939), (claimant injured crossing street to home where foreman had taken him after late work); Ward v. Cardillo, 135 F. 2d 260 (D. C. 1943) (claimant injured crossing street to board company truck which picked him up morning at 7:00 A.M.; free transportation found to be a part of compensation, since it saved claimant $5 per day in transportation costs); Povia Bros. Farms v. Valez, 74 So. 2d 103 (1954) (claimant injured crossing road to board company truck, which picked up employees in neighborhood each morning as driver saw them, no particular assembly point being designated).\n\u201cCases involving compensable deaths from carbon monoxide are: Mascika v. Connecticut Tool Engineering Co., 147 Atl. 11 (Conn., 1929) (decedent asphyxiated in own car preparing to go on trip to collect bills) ; Derleth v. Roach & Seedier Co., 227 Mich. 258, 198 N. W. 948 (1924) (decedent, a traveling salesman, fearing batteries would freeze in very cold weather, went home to test them in own garage, where he was asphyxiated); Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S. W. 2d 601 (1931) (traveling salesman asphyxiated while changing-tire in home).\n\u201cMention might also be made of the State Employees\u2019 Retirement System v. Industrial Commission, 97 Cal. App. 2d 380, 217 P. 2d 922 (1950). A game warden, who sometimes slept in his car while on night patrol,, was found dead of carbon monoxide on a secluded side road. The interior of the car had been made into a bed and at the decedent\u2019s side was the nude body of a female (not his wife). The California court affirmed an award of compensation. If California can grant compensation under these circumstances to one of its citizens, surely compensation is justified in Arkansas by reason and justice, in the case at bar. More, instead of being overcome while at an assignation, Rogers was overcome when he went, under an express work order from his employer, to a point where he was customarily picked up by his foreman. The foreman -was not told by the employer that Rogers was to work and because of the extreme cold (8-10 degrees) decided not to pick up the crew. This decision was not communicated to Rogers and he was asphyxiated by carbon monoxide, while vainly waiting for his foreman in the extreme cold.\n\u201cIn view of this court there is more work-connection with the death here than in Owens v. Southeast Arkansas Transportation Co., supra, and the other cases discussed supra. The usual transportation afforded Rogers was an incident of the employment, but because of the events surrounding Rogers\u2019 presence at the clearing on this particular morning, the failure to provide transportation was even more of an incident of the employment.\u201d\nFor the reasons stated, I respectfully dissent.", "type": "dissent", "author": "Jim Johnson, Associate Justice," }, { "text": "Ed. F. McFaddin, Associate Justice,\n'(concurring). I concur in the reversal of the Circuit Court and the affirmance of the action of the Workmen\u2019s Compensation Commission in disallowing compensation. The Majority Opinion contains this paragraph:\n\u201cCounsel for the appellees contend that Garlington was acting for his employer in driving Rogers to and from work. From this premise it is argued that Rogers was also in the course of his employment while waiting-in his own car beside the highway and that the onset of his asphyxiation must have taken place before he started to return to his home. We find it unnecessary to test this chain of reasoning, for there is substantial evidence to support the Commission\u2019s finding that Rogers\u2019 transportation was not being furnished by his employer.\u201d\nI agree with the Majority that Mr. Rogers\u2019 transportation was not being furnished by' his employer ; but there are other \u2014 and to me equally cogent \u2014 reasons why Mr. Rogers was not covered by the Workmen\u2019s Compensation Act at the time of his death.\nIn the first place, he had left the pick-up point and started home. Some time after 7:00 A.M. Mr. Rogers apparently realized that Mr. Garlington was not coming for him, so Mr. Rogers started back to his home. He drove down the county road about three-fourths of a mile and stopped. He was found dead in his car about 8:15. When Mr. Rogers left the pick-up point on the highway and started home in his own vehicle he ceased any semblance of coverage under the Workmen\u2019s Compensation Act, and for that reason I think the Commission was correct in denying compensation.\nAnother and equally cogent reason for denying compensation is the fact that there is no evidence that Mr. Rogers received the \u201clethal dose\u201d of carbon monoxide while he was on the highway waiting for Garlington to arrive. Speculation cannot take the place of proof. Mr. Rogers was in possession of sufficient faculties to turn his car around and drive toward home; and we cannot speculate as to when Mr. Rogers received the lethal dose of carbon monoxide.", "type": "concurrence", "author": "Ed. F. McFaddin, Associate Justice," } ], "attorneys": [ "Eugene 8. Harris and Bridges, Young \u00a3 Matthews, for appellant.", "McMath, Leatherman, Woods \u00a3 Youngdahl, for appellee." ], "corrections": "", "head_matter": "McCollum v. Rogers\n5-3341\n382 S. W. 2d 892\nOpinion Delivered October 19, 1964.\nEugene 8. Harris and Bridges, Young \u00a3 Matthews, for appellant.\nMcMath, Leatherman, Woods \u00a3 Youngdahl, for appellee." }, "file_name": "0499-01", "first_page_order": 523, "last_page_order": 538 }