McCollum v. Rogers, 238 Ark. 499

George Rose Smith, J. This is a claim filed by the appellees, the widow and children of Orvis Noel Rogers, for death benefits under the workmen’s compensation law. The Commission denied the claim upon the ground that the ease falls within the “going and coming rule,” 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’s decision, holding that the decedent’s 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’s decision is supported by any substantial evidence. Rogers, 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’ 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 ■other men in the crew provided their own transportation. The remaining two were truck drivers who drove their employer’s trucks to and from work. Bogers 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. On the morning of Bogers’ 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’ 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’ lifeless body was slumped over in the driver’s 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. Counsel 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’s finding that Rogers’ transportation was not being furnished by his employer. The governing rule of law was applied in Cerrato v. McGeorge Contracting Co., 206 Ark. 1045, 178 S. W. 2d 247, and O’Meara 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’s 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’ transportation was being furnished by the employer. We affirmed that finding.

Thus there is no essential conflict in our decisions. In the case at hand there is sufficient proof to support the Commission’s 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’s 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’ transportation expense. He did not care whether Rogers traveled to the highway in his own car, or walked, or rode with a neighbor. “He was just supposed to bring himself to work.” 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. We 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’s findings. To affirm the circuit court’s 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’s decision upon a disputed question of fact. Reversed. Harris, C.J., not participating. McFaddin, J., concurs. Johnson, J., dissents.