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Hurdle and Son v. Holloway10/5/1999
.01 and 15.03. However, the general rule in most jurisdictions still appears to be that this exception to the "going and coming" rule does not apply when the transportation is nothing more than a one-time or infrequent occurrence. For example, in the case of Arnold v. Wright, when an employee missed the bus and was unable to get to work on time, the employee's superior picked her up at home in a company owned vehicle to bring her to work. Arnold v. Wright, 80 N.Y.S. 2d 808, 808 (N.Y. Sup. Ct. 1948). On the way back to work, the employee was injured in an automobile accident. Id. The court held the injuries were not compensable in this situation because the transportation was not provided as a part of a formal or informal arrangement by the employer. Id. See also, Larson, supra § 15.03. Larson's treatise suggests that the trend is away from drawing such a distinction in determining issues of compensability, but we do not think it necessary to resolve that question in this case.
. In the case now before us, the Commission found that Hurdle and Son had a custom and practice, albeit informal, of providing transportation on some regular basis to Holloway. Specifically, in the administrative Judge's findings as adopted by the Commission, there appears the following:
6. Both the owner of the Employer , J. K. Hurdle, and his son, Sam Hurdle, provided transportation to and from work for Claimant on a consistent basis, at least 20% of the time. These facts are undisputed.
. Hurdle and Son strenuously contests this finding, indicating that there is not substantial evidence in the record to support the proposition. The testimony of the claimant himself was that he normally rode to and from work with his uncle, Dornell Holloway. There is no indication that this transportation arrangement had either the official or unofficial sanction of Michael Holloway's employer . Nevertheless, there was also testimony to the effect that the principals of Hurdle and Son were aware that Michael Holloway did not have his own means of transportation and that there was a standing arrangement that, in those circumstances when Dornell Holloway was unable to provide transportation to his nephew for any reason, either J. K. Hurdle or Sam Hurdle would provide such transportation. Sam Hurdle provided the estimate that Mike Holloway rode to and from work with Dornell Holloway eighty percent of the time, from which the Commission appears to have extrapolated the finding that either J. K. Hurdle or Sam Hurdle must have been providing the transportation the remaining twenty percent of the time.
. There was other testimony in the record, including from the claimant himself, that would seem to cast some doubt as to whether this alternate means of transportation was provided with such a high degree of frequency. However, it would still appear that the evidence would support a finding that there was a standing custom or practice, mutually beneficial to both the employer and Michael Holloway, to provide him with transportation at any time he was not able to obtain a ride with his uncle. This arrangement, even though the need for it may have arisen with a frequency of less than twenty percent of the time, remains distinguishable from the situation where, in isolated and unusual circumstances, an employer might occasionally provide transportation to an employee as a one-time accommodation.
. Therefore, we conclude that we are without any basis to disturb the Commission's finding that provision of transportation by the employer for Michael Holloway to get to or from work in those instances when he could not catch a ride with his uncle was an informal custom and practice that took such transportation out
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