Evening Star Newspaper Company v. Kemp

533 F.2d 1224 (D.C. Cir. 1976)

Facts

Kemp (P), was employed by the Evening Star as a truck driver delivering newspapers. While on pay status with D, P was killed by a gunshot wound. D had approximately one hour between D deliveries in which he could do as he pleased while still on the clock. P learned that his taxicab had been hit. Ward, an employee, suggested to P getting Andrews, who was another 'on the clock' driver and who did body work. All three then walked over to the lot to check out the accident. Andrews looked at the dent in the taxicab and stated that if he had a rubber mallet he could fix it enough for P to get through inspection. P got the gun out of the car and Ward and P began playing with the gun. The three men then left in the taxicab to go to the New Star Garage about three blocks away to get the rubber mallet. Andrews began working on the car and the other two men again got the gun out. In the course of handling the gun, it went off while Ward was holding it. P was killed by the shot. Before the Administrative Law Judge there was testimony that P carried the gun because he was afraid of being robbed in his taxicab and because he was afraid of things that might happen while he was driving the D's delivery truck. None of D's other drivers carried guns on their trucks, although some carried them in their cars. The drivers were required to deliver papers into some rural areas and were sometimes required to carry money for the company. During 'free time' the drivers had between their runs. they remained 'on the clock' for pay computation but were allowed to leave and do whatever they wanted. It was common for drivers to work on their private automobiles, to consult with the D's mechanics about such automobiles, and to borrow tools. D's supervisory personnel were aware of these activities and permitted them to occur. The ALJ awarded compensation and the Benefits Review Board agreed with such order. D appealed.