This case is presented here on appeal from the Saline Circuit Court which affirmed a finding of the Workmen’s Compensation Commission denying the claim of Mrs. Carl F. Beckerman against the Owosso Manufacturing Company.
The facts in this case may he briefly summarized as follows. Carl F. Beckerman was an employee of the Owosso Manufacturing Company, appellee here, and was engaged as a marker and stacker of logs. The plant of the appellee was on Neeley Street which is a street in the City of Benton and at the point involved in this case, runs approximately north and south. The plant of the appellee is situated on both sides of Neeley Street, which street is sometimes locally referred to as Owosso Road.
On the day of the accident, the deceased, Becker-man, had checked out at the plant of the appellee at noon, or as stated, 12:03, and had taken his car from the parking lot on the premises of appellee on the east side of Neeley Street and had driven it from the parking lot to Neeley Street where he turned to the right and had gone what witnesses described as ‘about a block’ to a point where Neeley Street was intersected by a railroad track. At this point, which is described as being about 28 feet from the boundary of appellee’s property, Beckerman’s car was struck by a train and Beckerman was killed.
Stripped of its nonessentials the case narrows down to a determination as to whether or not compensation is due under an exception to the “going and coming rule ’ ’ with particular attention to exception “ B ” as set out in the case of Frank Lyon Company v. Oats, 225 Ark. 682, at p. 684, 284 S. W. 2d 637, which is the exception stated to the general rule and has reference to employees injured while in close proximity to the place of business. These facts appear to be uncontroverted. That Beckerman had left the property of the appellee and embarked on a mission of his own which carried him into the general traffic on Neeley Street. Whether the purpose of his trip was to go to lunch at a restaurant a short distance from the point of the accident, or whether to follow Neeley Street into the business area of Benton, we do not know, nor do we think it of importance for it is not shown that he was on any mission connected with the business of the appellee.
Measuring this case in the light of Bales v. Service Club, 208 Ark. 692, 187 S. W. 2d 321, we find a different set of circumstances in that this court ordered compensation for an employee of the service club who, in going to work, was injured when she fell upon an icy sidewalk which was immediately adjacent to the premises of the employer and under the exclusive control of the employer, and in that case this court found that the employee had the choice of entering the building where she was employed or re-tracing her steps. The court further said that for all practicable purposes she had reached the place of employment. In that opinion this court quoted from 71 Corpus Juris 716, § 445, including this quotation: “Thus injury from an accident in the street or on a highway while on the way to or from work is not ordinarily compensable unless the employment is such that the employee must travel the street in order to perform it, or where the employee is subject to emergency calls, or where the employee is off the premises by reason of the express direction of the employer.” Beckerman does not fall within any of these exceptions. When he left the premises of the appellee he was under no obligation to perform any services for the appellee and for the time intervening between his leaving and one o ’clock, the employer owed him no money. There was no emergency call that took him upon the highway or any express direction of the employer directing him so to go. Between 12:03 and 1:00 o’clock, Beckerman and the employer went their several ways without obligation of one to the other.
In the Frank Lyon Company v. Oats case, supra, exception “D,” 225 Ark. at p. 684, deals with the “traveling salesman rule”. The reasoning in the traveling salesman rule is applicable here. The ■ traveling salesman, while about the business of the employer, be he where he may, is upon the employer’s business.and is as much at his post of duty as the workman at his bench within the plant itself.
In applying the ‘close proximity exception’ to the ‘coming and going rule,’ we call attention to the fact that Beckerman had traveled ‘about a block’ from where he left the property of his employer and was only a matter of some 20 feet from the property line of the employer when he was at the public crossing where he was killed.
Could we arbitrarily say that if a man is within so many feet, yards, blocks or miles of his employer’s business his injury is compensable? A matter of that importance must rest on a more secure and easily ascertained basis than judicial whim or emotional appeal. The touchstone is not how near he might have been to his employer’s business, but was he performing any duty in connection with his employment, or was he at the point of the accident at his employer’s direction, or using facilities supplied by the employer.
Appellant argues with much plausibility that Neeley Street was so extensively used by the employer and was so much a part of its operation that Neeley Street, at the point of the plant, should be considered as part of the employer’s premises. We do not so agree. A homely test as to whether or not Neeley Street was part of the employer’s operational area would be if the appellee sold its business could it convey the street in which it had no proprietory interest — obviously not, and we discard that theory of appellant. In Rhyne, Municipal Law (1957), §§ 18-31: “An abutting owner has two distinct rights in the streets and alleys, (1) the public right of passage from end to end, which is equal to but in no sense greater than, the rights of the general public; * * *” Hence the only use that appellee could make of Neeley Street was to use it for movement as the general public did. It could not subject any part of the public domain to its exclusive use in its business. Hence the deceased could have had no duty to perform on Neeley Street and he was upon that street subject to all the hazards of the traveling public generally.
The Parramore case [Cudahy Packing Company v. Mary Ann Parramore, 263 U. S. 418, 44 S. Ct. 148, 68 L. Ed. 366, 30 A. L. R. 532] is based upon a set of facts in no wise comparable to the case at bar, hence it does not apply, but the court did say that there must be a connection between the injury and the business in which the injured man was employed. In the Parramore case the employee was forced to use a hazardous means of access to the plant which was kept in repair for the use of persons traveling to and from the employer’s plant and the commission found that compensation, was due.
In the Davis v. Chemical Construction Company, 232 Ark. 50, 334 S. W. 2d 697, case we deal with an entirely different set of circumstances. There the employee was injured in a parking area maintained by the employer for the employees and this court said: “ * * * It does not seem to us that Davis should be held to have left his employer’s premises until he had passed through the second gate and joined the general traveling public.”
From a review of all the facts and the law, we find that the circuit court was justified in sustaining the opinion of the Workmen’s Compensation Commission which found that the claim should be denied and dismissed. The judgment is therefore affirmed.
Ward, Robinson and Johnson, JJ., dissent.