Colonial Building & Loan Ass'n v. Industrial Commission

Undoubtedly whether the deceased, James Clinton Allen, was an employee of the Colonial Building Loan Association at the time of the fatal injury is a fact question. The evidence on that subject is in conflict. This court is not allowed on review to disturb the finding of the Industrial Commission where, as here, there is substantial competent evidence to support the finding that Allen was so employed.

The other question is one of more difficulty. The record shows that Allen and one Whittlesey were on their way from Ogden to Denver and Pueblo on business of their own, or at least on some business other than the business for the Colonial Building Loan Association. It is undisputed that Allen intended calling at Cheyenne to there transact business for and on behalf of the Colonial Building Loan Association. The most direct road to Denver leads through Laramie and thence south to Denver. In order to reach Cheyenne the parties would have to leave the main Denver highway at Laramie and travel easterly to Cheyenne. Had the accident happened after leaving Laramie on the detour to Cheyenne, there would be no question but that the trip from Laramie to Cheyenne was being made for the purpose of furthering the interests of the Colonial Building Loan Association. The fatal accident happened, however, a short distance east of Parco, and before the parties reached Laramie. They were at the time as much on the road to Denver as on the road to Cheyenne. This court in Sullivan v. Industrial Commission, 79 Utah 317,10 P.2d 924, had before it a similar but converse situation. We there held that, where an employee breaks the continuity of a journey in his employment for purposes of his own, and sustains an injury before he brings himself back into the line of his employment, the injury is not compensable, since not arising out of or in the course of employment. It has been held that where one, while making a journey in his own behalf, is injured and killed while en route, he is not entitled to compensation, notwithstanding his employer had requested him to attend to some duty connected with his employment at his destination. The test was whether the journey would have gone forward, although the business en route had been dropped. Where this is so, the business of the employer is merely an incident of the trip, and the travel as well as the risk is then personal. Marks' Dependents v. Gray, 251 N.Y. 90,167 N.E. 181; Barragar v. Industrial Commission ofWisconsin, 205 Wis. 550, 238 N.W. 368, 370, 78 A.L.R. 679. In the latter case, the court, after quoting from Marks'Dependents v. Gray, supra, said:

"It is our conclusion that the test laid down by the New York court is sound. If this test is applied to the findings of the commission, it is clear that the business errands requested of deceased as an incident to this trip were so far subsidiary to the personal objectives of the deceased that the trip would not have been insisted upon for business purposes had the deceased elected not to make the trip for his own purposes, and that in consequence the service was not a concurrent cause of the trip. The ascertainment of the facts necessary to apply this test involves the determination of a question of fact, and, if there is evidence to sustain the commission, its findings cannot be disturbed. We have concluded that there is evidence upon which the commission could have concluded that the business errands were involved as mere incidents to a pleasure trip for which permission had been unconditionally given and that they were in no way concurring causes of the trip. That there is evidence from which the commission could have come to a contrary conclusion is true but immaterial in view of the rules applicable to review of findings by the commission."

The second question was also one of fact for the commission to decide. The evidence shows the trip had a double purpose; that Allen had in mind the business at Denver and Pueblo and also the business en route for the Colonial Building Loan Association at Cheyenne; that the trip would not have been made for either purpose alone, but was made to accomplish both purposes on the same trip. Upon reaching Parco, some time after midnight, Allen and Whittlesey discussed the matter and decided that, instead of stopping for the night at Parco, they would drive on to Cheyenne to permit Allen to transact there the business of the Colonial Building Loan Association before proceeding to Denver. The commission made a finding:

"That at the time of his receiving said fatal injury said decedent was engaged in proceeding to the city of Cheyenne for the purpose of transacting business for said Colonial Building Loan Association solely and would not have been traveling upon the highway eastward at said time had it not been for the occasion of such business to be so transacted by him."

The question is a close one, for the reason that the accident happened on the highway which would lead to either Cheyenne or Denver. With some hesitancy I have reached the conclusion that there is substantial evidence which supports the above finding to the effect that this particular part of the journey, at the time it was taken, was intended by the parties as a journey to Cheyenne for the purpose of transacting business there, and that the parties might not have continued their journey at that time had the intention not been to go directly to Cheyenne.

There being substantial evidence in support of the commission's finding, we cannot do other than affirm the award.