Precedents: The Journey to Shortsville

Can an employee be
outside the course and scope of employment when injured during working hours on
the premises where he works, while acting completely in compliance with his
employer’s company policies? The answer is “yes.”

In Texas Workers’ Compensation
Appeal No. 010163-S, 2001 WL 529100 (Tex. Work. Comp. Com. 2001), the
claimant was injured as he picked up an 80-pound bag of concrete to load onto a
pallet to take out to his company-owned truck, which was parked on-site at the
outlet where he was based. Another employee whose job it was to load and unload
merchandise assisted him. The employer had a policy that allowed employees to
purchase items from its building supply outlet for 10% over cost, and the
purchase would be deducted from the employee’s paycheck. The claimant was
completely in compliance with this policy at the time of his injury.

Citing Texas Workers’ Compensation
Appeal No. 961848, the appeals panel observed that “whether a worker is given
permission to perform something personal on work hours is not determinative of
whether a claimant was in the course and scope of employment when injured.” Similarly,
the appeals panel noted that the fact that the employer permitted employees to
purchase goods at a slight markup was not regarded to be dispositive of the
work-relatedness of the purchasing mission.

So, what is the key to
understanding the appeals panel’s conclusion that the claim was not
compensable? The answer to that question begins with Isadore Marks and his
ill-fated 4.4 mile drive from the village of Clifton Springs, N.Y. to the
village of Shortsville, N.Y.

Marks was a plumber’s helper who lived and worked in Clifton Springs, New York. On April 16, 1927, Marks’ wife went to visit relatives at Shortsville, New York where her husband promised to call for her in the family car at the end of the day’s work. Marks’ employer, hearing that he was going to make this journey, asked him to take his tools and fix some faucets that were out of order at a dwelling house in Shortsville. The job was a trifling one, calling for fifteen or twenty minutes of work. There would have been no profit in doing it at the cost of a special trip. It would have been postponed till some other time when it could have been combined with other work, if Marks had not stated that he intended to make the trip anyhow. Marks used a personal vehicle to make the trip. Nothing was said by the employer about paying him for the job. The expectation was, however, that, for any work that he did, Marks would be paid at the usual rate for labor after working hours. On the way to Shortsville, when only about a mile from Clifton Springs, he was injured in a wreck and died.

The New York Court of
Appeals reversed a lower court decision and rendered judgment that Marks’ injury
was not in the course and scope of his employment. Marks’ Dependents v.
Gray, 251 N.Y. 90, 167 N.E. 181 (1929).

So what? How does a 1929
New York workers’ compensation case help resolve a Texas workers’ compensation
claim? Well, Marks’ Dependents v. Gray wasn’t just any 1929 New York
case. To begin with, Marks’ Dependents was decided less than 20 years
after workers’ compensation was first recognized in the United States. Many
principles of law that seem straightforward today only seem so because of early
cases like Marks’ Dependents.

But more importantly, Marks’
Dependents may be the most famous workers’ compensation decision authored
by Justice Benjamin N. Cardozo, a state appellate judge, who was subsequently
elevated to the United States Supreme Court. Justice Cardozo is probably most
famous for his 1928 opinion, Palsgraf
v. Long Island Rail Road Co., 162 N.E. 99 (1928), which famously
explains the tort concept of “proximate cause.”

It is safe to say that
every first year law student has sweated out the meaning of Palsgraf.
But not every lawyer, even a workers’ compensation specialist, understands the
importance to Texas law of Justice Cardozo’s opinion in Marks’ Dependents.

So, how does Marks’ Dependents
apply to our Texas case?

In 1944 the Texas
Supreme Court refused the writ of error in the case of McKim
v. Commercial Standard Ins. Co., 179 S.W.2d 357 (Tex. Civ. App.—Dallas
1944, writ ref’d). If you substitute a fancy hat for an 80-pound bag of cement,
the facts in McKim are surprisingly similar to those in Texas Workers’ Compensation
Appeal No. 010163-S.

As the court of appeals
in McKim observed, in January 1942 Bobbie McKim was employed as a hat
maker for the Gold-Claire Hat Company. Her work hours were from 8:15 A. M. to 5
P.M., with a short lunch break being permitted. The employer permitted its
employees to buy hats at wholesale prices, making a small profit on each
transaction.

On the day of her
injury, McKim headed downstairs when she remembered a hat in the rear showroom
that had “struck her fancy” a couple of days before. McKim walked to the front
office and asked her supervisor if she might buy it. The supervisor instructed
McKim to bring the hat to the office where she would determine if the hat was
for sale. While retrieving the hat to comply with her supervisor’s
instructions, McKim slipped and fell, sustaining a serious knee injury.

The court resolved McKim
(and by doing so, anticipated the result nearly 60 years later in Appeal No.
010163-S) by relying upon Justice Cardozo’s reasoning in Marks’ Dependents.

[McKim’s] claim plainly falls within that class of cases of which Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 182, is illustrative. Chief Justice Cardozo there held: ‘We think the accident did not arise ‘out of and in the course of’ any service that Marks had been employed to render. He was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer’s work. He was making it in fulfillment of a promise to call for his wife at the end of the day, and bring her home in the family car. If word had come to him before stating that the defective faucets were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. The employment did not bring him on the journey or expose him to risks. If that is so, it is not ‘out of the employment’ that the injuries arose.’

Likewise in the case at bar, it cannot be said that Mrs. McKim would have made the trip for the hat had she decided that she did not want it. The necessity for the errand was created, not by her work but by reason of her personal desire, which had nothing to do with her employment. Cancellation by plaintiff of a purpose to buy the hat would have canceled the necessity for the trip she made. The trip being personal, so also was the risk.

McKim v. Commercial
Standard Ins. Co., 179 S.W.2d 357, 359-60 (Tex. Civ. App.—Dallas 1944, writ ref’d).

Relying upon McKim,
which, in turn relies upon Marks’ Dependents, the appeals panel in Texas
Workers’ Compensation Appeal No. 010163-S reversed all findings of fact and conclusions
of law material to a finding that the claimant sustained a compensable injury,
and rendered a decision that the claimant had been injured during a deviation
from the course and scope of his employment while engaged in a personal errand.
The panel concluded that the claimant’s injury and resulting period of
disability were not compensable.

Sometimes the quickest
answer to a compensability question involves taking “the journey to
Shortsville.”