LYDAY v. HOLLOWAY

LYDAY v. HOLLOWAY
1955 OK 262
293 P.2d 348
Case Number: 36812
Decided: 09/27/1955
Supreme Court of Oklahoma

HARVEY LYDAY, PLAINTIFF IN ERROR,
v.
W.J. HOLLOWAY, DEFENDANT IN ERROR.

Syllabus

¶0 1. In the absence of an agreement, express or implied, to transport an employee to or from the place of work, the employer is not responsible for an injury sustained by the employee in traveling to or from the place of work.

2. An employee, who was injured when thrown off truck being driven by an officer and employee of employer company, said truck being taken from one place of business to another place of business of business to another place of business belonging to employer and on which truck injured employee had requested a ride on a private mission of his own, did not sustain injury arising out of and in course of employment, within meaning of compensation act, where employee had no instructions from employer to ride with fellow employee, and jurisdiction of action for damages is in the district court rather than the State Industrial Commission.

[293 P.2d 348]

Appeal from the District Court of Tulsa County; Elmer Adams, Judge.

Action in damages for personal injury by plaintiff, Harvey Lyday, against the defendant, W.J. Holloway, arising as result of accident involving truck driven by defendant and car driven by third party. Defendant's special appearance and plea to jurisdiction of trial court was sustained. From such plaintiff appeals. Reversed and remanded with directions.

Quinn Dickason, Tulsa, for plaintiff in error.

Sanders & McElroy, Tulsa, for defendant in error.

PER CURIAM.

¶1 Plaintiff brought this action in the District of Tulsa County to recover damages for personal injuries. Defendant filed special appearance and plea to the jurisdiction of the district court on the ground that the accident complained of was an industrial accident over which the State Industrial Commission has sole and exclusive jurisdiction, which plea was sustained by the lower court. From judgment of dismissal entered, plaintiff appeals.

¶2 The parties occupy the same relative positions here as in the trial court and will be referred to as they therein appeared.

¶3 Plaintiff is an employee of the Holloway Material and Supply Company, a [293 P.2d 349] corporation, hereinafter called "company". Defendant is an officer and employee of said company. The company has two places of business, designated respectively as yards No. 1 and 2 both in the City of Tulsa, Oklahoma, and falls within the purview of the Workmen's Compensation Act,

¶4 Plaintiff testified that he was employed by said company; that he lived northeast of yard No. 2; that yard No. 1 was in the opposite direction from this place of abode; that he never at any time, worked at yard No. 1; that he came to and from his work by his own means of transportation; that on the particular day in question his automobile was broken down and after the close of working hours he requested a ride to town on the truck in order to get a transmission for his car. There is no evidence that he had directions or instructions to ride with defendant. There is no evidence of an express or implied contract by defendant or the Holloway Material and Supply Company to transport this plaintiff to and from work. There is some evidence that others of the employees of said company were permitted to ride this truck to and from work. However, this plaintiff had never before ridden said truck; it was going in the opposite direction from his home; he was not going to yard No. 1 to work for the company, but was merely riding on the truck as a means of transportation on a private mission of his own. It is alleged that when defendant reached Archer street where there was a stop sign, he failed to heed said stop sign but continued on into the intersection at which time a car coming from the east ran into the truck driven by defendant, throwing plaintiff to the pavement and inflicting upon him severe and painful injuries.

¶5 The fact situation alleged in the case at bar is so nearly analogous to that in the case of A. & E. Lumber Co. v. Atkinson, 184 Okl. 530,

¶6 The judgment of the trial court dismissing the action is reversed and the cause remanded with directions to proceed in accordance with the views therein expressed.

¶7 WILLIAMS, V.C.J., and WELCH, CORN, DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur.

¶8 "The Court acknowledges the aid of the Supreme Court Commission in the preparation of this opinion. After a tentative opinion was written by Commissioner JEAN R. REED and approved by Commissioners J.W. CRAWFORD and JAMES N. NEASE, the cause was assigned to a Justice of this Court for examination and report to the Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court."