#### Willie W. SONNIER, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

No. 2955.

Court of Appeal of Louisiana. Third Circuit.

Feb. *4,*1970.

Dissenting Opinion Feb. 10, 1970.

Rehearing Denied March *4,*1970.

Writ Refused April 20, 1970.

*617Holt & Woodley, by A. William Mysing, Jr., Lake Charles, for defendant-appellant.

Cormie & Morgan, by Robert E. Morgan, Lake Charles, for plaintiff-appellee.

Before TATE, FRUGÉ, SAVOY, HOOD and CULPEPPER, JJ.

SAVOY, Judge.

This suit was instituted by plaintiff against the workmen’s compensation carrier of Choupique Ranch, Inc. seeking total and permanent disability payments as a result of injuries received by him on June 19, 1968, while he is alleged to have been in the course and scope of employment for Choupique Ranch, Inc. Defendant insurer, Travelers Insurance Company, filed a general denial. After a trial on the merits plaintiff was awarded workmen’s compensation for total and permanent disability. Defendant has appealed.

Plaintiff had been employed initially by Choupique Ranch in Louisiana. Choupique also conducted farming operations in Arkansas. Plaintiff’s employer sent him to work on its Arkansas operations. He was accompanied by his wife and was furnished a house on the employer’s premises without any charges being made for rent. Plaintiff paid for his own utilities. While there he performed work for Choupique Ranch and also for Mr. R. J. Stine, a brother of Ed Stine, president of Chou-pique Farms, Inc.

After being in Arkansas for some time plaintiff’s wife became dissatisfied ' and moved back to Louisiana. Shortly after plaintiff’s wife’s departure, plaintiff stated to W. J. Stine, manager of the Arkansas operations for Choupique, that he wanted to return to Louisiana. His last work for the ranch was some time prior to June 14, 1968, for he received his last check from the corporation on that date.

Several days after June 14, 1968, plaintiff performed work in Arkansas for Mr. R. J. Stine. He left Arkansas on June 19, 1968, and when his car reached a point south of DeQuincy, Louisiana, he had an accident with resulting injuries. His destination had been in the vicinity of Sulphur, Louisiana.

In his written reasons for judgment, the trial judge allowed plaintiff to recover for the reason that plaintiff’s employer had furnished gasoline to plaintiff to make the trip from Arkansas to Louisiana in order to retain him as an employee in Louisiana.

After an examination of the record we are unable to agree with this finding of fact by the trial judge.

Prior to his departure for Louisiana plaintiff had discussed the possible move from Arkansas to Louisiana with W. J. Stine, a nephew of Mr. Ed Stine. W. J. Stine contacted his uncle in Louisiana and was told that he would attempt to secure plaintiff employment at the Edgerly Rice Dryer, Inc., a corporation of which Mr. Ed Stine was president, pending the arrival of certain farm equipment from Arkansas.

The record reveals that there was no agreement for Choupique to furnish gas to plaintiff for the trip to Louisiana. Plaintiff took gasoline from the pump owned by Choupique and left Arkansas at a time when Mr. W. J. Stine was several miles from the premises. Even plaintiff did not testify that Choupique was to furnish him gasoline for the journey to Louisiana. Plaintiff had not worked for Choupique for at least five days prior to the accident. He furnished his own transportation for the trip to Louisiana.

*618We are reluctant to reverse the trial judge on a question of fact. However, as we read the record, we find that the employer-employee relationship had terminated prior to the time plaintiff left Arkansas for Louisiana. There was no obligation on the part of Choupique Farms to hire plaintiff upon his return to Louisiana. His main reason for returning was to be with his wife.

In the recent case of Templet v. Intra-coastal Truck Line, Inc., et al., La., 230 So. 2d 74, bearing docket number 49,734, decided by our State Supreme Court on December 15, 1968, that court, by unanimous decision, held that an employee on his way to work in his automobile, who was injured while entering the premises, could not recover for workmen’s compensation. Justice McCaleb, as the organ of the court, discussed the jurisprudence on this subject and stated that in the absence of a special or contractual understanding, the employer does not have the supervision and control over the employee before and after working hours, and before he has arrived or after he leaves the premises. Justice McCaleb also said that any extension of coverage for workmen’s compensation must be founded on the existence of conditions surrounding the locality of the employment which makes it more hazardous to the employee than it would have been had he not been employed. The court went on to hold that a claim for injuries occurring on a road or highway is not compensable, and to recover there must be a hazard such as railroad tracks, tunnels, covered wharves and the like to which the employee is regularly and peculiarly exposed by reason of his employment to which the public generally, although subjected to such hazard, is not usually exposed to the extent of the employee.

To hold as the trial judge did in the instant matter would extend the jurisprudence now existing in this state.

For the reasons assigned the judgment of the district court is reversed, and judgment is hereby rendered in favor of defendant, Travelers Insurance Company, and against plaintiff, Willie W. Sonnier, rejecting his demands and dismissing his suit. Appellant to pay costs incurred in the district court and on appeal.

Reversed.

TATE, Judge

(dissenting).

The trial court determined in a well-considered opinion that the present employee’s trip when transferred from Arkansas to Louisiana was in the course and scope of employment. The majority reverses. I respectfully dissent.

My dissent will not be primarily grounded on the majority’s rejection of testimony accepted by the trier of fact. This was to the effect that the employer had paid the gasoline expenses of the trip and that the employee was proceeding home as a result of an express agreement to furnish transportation. (If so, as the majority concedes, the employee is undoubtedly protected by the Louisiana compensation act. Griffin v. Catherine Sugar Co., 219 La. 846, 54 So.2d 121; Soileau v. Tyl, La.App. 3d Cir., 148 So.2d 173; O’Brien v. Traders & General Ins. Co., La.App.- 1st Cir., 136 So.2d 852.)

For even if the employer did not specifically pay for the gasoline for the trip home, I think the circumstances of this employment relationship indicate that the employee Sonnier was where he was at the time and place of the accident in the interests, essentially, of his employer.

The following principles apply:

An employee covered by the Louisiana statute is entitled to receive workmen’s compensation if disabled “by accident *arising out of*and *in the course of*his employment.” LSA-R.S. 23:1031. In Kern v. Southport Mill, 174 La. 432, 141 So. 19, 21 (1932), a leading case, our Supreme Court stated that, for purposes of the workmen’s compensation act, (a) “an accident occurs *619*in the course*of an employment when it takes place during the time of such employment”, and (b) it *arises out of*the employment when it is “the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.” (Italics ours.)

Non-employment activities during which injuries are sustained may be protected by the compensation act if such activities are “reasonably with the scope of those things contemplated” by the employment. Edwards v. Louisiana Forestry Commission, 221 La. 818, 61 So.2d 449, 454. Personal activities may be within the course and scope of the employment if at least partially performed for the employer’s benefit. Green v. Heard Motor Corp., 224 La. 1077, 71 So.2d 849; Harkness v. Olcott-Stone Motors, 203 La. 947, 14 So.2d 773.

Sonnier’s employer, Choupique Ranch, had previously transported him and his family to an Arkansas site from his Louisiana post and then several months later furnished the transportation for the wife and furniture home to Louisiana. In the employer’s interest, Sonnier remained in Arkansas another month; he was injured en route to report for work at the Louisiana site of his employer’s holdings.

By splitting up the Arkansas and Louisiana employments, the majority avoids the effect of the continuing relationship over the years.

Sonnier had skills unusually useful to an employer in Choupique’s business, being both a bulldozer operator and a welder. To retain his services, Choupique furnished him a rent-free home during the entire year (which was still Sonnier’s at the time of the accident). It transported him and his wife and furniture from Louisiana to Arkansas when it needed him there, it transported his wife and most of his furniture back to Louisiana when she became dissatisfied (Sonnier remaining to help out his employer in Arkansas), and it had secured employment with him in a related enterprise (managed by the same family as owned Choupique) pending the arrival back in Louisiana of the bulldozer Sonnier operated for Choupique in its Arkansas and Louisiana operations.

The whole continuous relationship is one by which Sonnier’s moves to and from Arkansas were reasonably within the scope of employment rather than of purely personal activities. He was exposed to the hazards of travel between employment sites by reason of his continuing relationship with Choupique as an employer. The move to Arkansas was solely for Choupique’s benefit; the move back was the concluding portion of this Arkansas service, as well as being for Choupique’s benefit as well as Sonnier’s.

Sonnier’s ordinary everyday activities up in Arkansas did not subject him to unusual risk such as to be within the employment relationship. However, the hazards of the trip back constituted an out-of-ordinary risk to which he was subjected because of his employment relationship. His employer should be responsible for injuries incurred during exposure to this extraordinary risk, employer-directed and for the employer’s benefit in order to retain Sonnier’s unusual skills in its employment.

I therefore respectfully dissent from this reversal of the trial court.

Before TATE, FRÜGÉ, SAVOY, HOOD and CULPEPPER, JJ.

An Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents for reasons assigned in his dissent to the original opinion.