McNaught v. Standard Oil Co.

Day, J.

This is a compensation case. The plaintiff was employed with his truck to sell and deliver gasoline and other petroleum products in a definite territory surrounding Polk. The compensation commissioner made an award, but, upon appeal to the district court, compensation was denied for that the injuries sustained by the plaintiff were not caused by an accident arising out of and in the course of his employment by defendant. This is the only question presented here. If the plaintiff’s injury was caused by an accident arising out of and in the course of his employment, it is agreed by the parties that the award of the compensation commissioner is proper.

On January 13, 1934, the plaintiff left Polk with his truck loaded with gasoline and other petroleum products with the intention of making several deliveries. When he found his first customer away from home, he drove to Stromsburg for the purpose of making a payment of - an instalment on the purchase price of his truck. Stromsburg is about four miles outside of the territory in which plaintiff was authorized to sell and deliver merchandise. After making the payment on his truck, the plaintiff drove back toward the home of another customer to make a delivery and, when within about one and one-half miles from the line that marked the limit of his territory, the accident occurred. The defendant contends that the trip to Stromsburg was a deviation from his duty and that an injury caused by an accident on this trip was not one arising out of and in the course of his employment.

“Workmen’s compensation law provides compensation for such injuries only as arise out of and in the course of workmen’s employment.” Pappas v. Yant Construction Co., 121 Neb. 766. See Bergantzel v. Union Transfer Co., 124 Neb. 200; Siedlik v. Swift & Co., 122 Neb. 99; Feda v. Cudahy Packing Co., 102 Neb. 110. Pappas was engaged in the repair of his truck which he used in the employment, at home, on a day he was not working. He was injured, and this court denied compensation. Bergantzel and Siedlik were injured on their way to the premises of the employer before starting upon the day’s work. Feda was injured during working, hours, but while engaged in playing and scuffling with another employee in a dangerous position around the elevator.

The plaintiff was employed upon the day of the accident when he loaded his truck with merchandise and started to make deliveries. But the employer challenges his status, from the time he left the territory in which he was authorized to work, on the trip to Stromsburg. On the other hand, the employee insists that the trip to Stromsburg to pay an instalment of the purchase price of the truck was an incident of his employment. In Tragas v. Cudahy Packing Co., 110 Neb. 329, the employee was injured during the noon hour on the employer’s premises grinding a chisel which he used in his work. This was held to be incidental to his employment. In Speas v. Boone County, 119 Neb. 58, the employee furnished his own team for work on a public road. Ordinarily, he fed the team on the road, but on the day of the accident his work was near his home, and he put them in the barn to feed them. During the noon hour, while caring for the horses, one of them kicked him, injuring him. Under the facts and circumstances of that case, caring for the team during the noon hour was held to be incidental to his employment.

However, another provision of the workmen’s compensation act defines its terms. Section 48-152, Comp. St. 1929, says: “ ‘Personal injuries arising out of and in the course of employment,’ it is hereby declared: Not to cover workmen except while engaged in, on or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen.” The plaintiff in this case, at the time of the accident, was not engaged in, on or about the premises where his duties were being performed, or where his service required his presence as a part of such service, unless the payment on the truck was a duty incidental to his employment. The plaintiff furnished the truck, but the tank and rack were the property of the defendant. It was necessary for the payments to be made on the truck for the plaintiff to continue his employment. The same was true in Pappas v. Yant Construction Co., 121 Neb. 766. It was as necessary that Pappas’ truck be repaired as that McNaught’s truck have an instalment on the purchase price paid. There is no suggestion in the record that the employer here was interested in the matter. Where an.employee leaves the place where his duties are to be performed or where his service requires his presence to engage in a personal objective, not incidental to his employment, the relation of employer and employee does not exist until he returns to a place where by the terms of his employment he is required to perform service.

At the time of the accident, the plaintiff was returning from Stromsburg and was one and one-half miles east oí the territory in which he was authorized to work. He relies upon Keebler v. Harris, 120 Neb. 739, to sustain his contention that, even if the trip to Stromsburg was not incidental to his employment, at the time of the accident, his private purpose had been fulfilled, and he was on his way back to the place where his employment required him to be. In the Keebler case, Harris, an employee of the American Credit Corporation, drove his employer’s car into a collision with plaintiff. Harris had general authority to collect delinquent payments and to repossess cars. He repossessed a car and drove it to make a collection, then deviated from his course for personal pleasure. At the time of the accident, he was on his way back to the garage where it was his duty to deliver the car. He was not on a direct route from his last duty in his employment to the garage. It was there said: “He kept within the zone of his general duties. If he deviated from the direct route and temporarily abandoned his employment for his own pleasure, the evidence tends to prove that he resumed those duties when he started to the storage garage and that the accident occurred on the way.” At the time of the accident, Harris was doing the specific thing he was ordered to do.

This plaintiff was not within the zone of his general duties. Anyhow, the Keebler case was a common-law action, brought by a third party, and not a compensation case. To recover under the workmen’s compensation law, one must be within its provisions. The plaintiff was not within its terms.

Affirmed.