Zurich General Accident & Liability Ins. Co. v. Brunson

• Decision Date: 29 November 1926
• Docket Number: No. 4928.,4928.
• Citation: 15 F.2d 906
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. v. BRUNSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

15 F.2d 906 (1926)

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. v. BRUNSON et al.^*

No. 4928.

Circuit Court of Appeals, Ninth Circuit.

November 29, 1926.

Bronaugh & Bronaugh and F. C. McDougal, all of Portland, Or., and J. Hampton Hoge, of San Francisco, Cal., for appellant.

W. A. Carter, Franklin F. Korell and Jerry E. Bronaugh, all of Portland, Or., for appellees.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge (after stating the facts as above).

The workmen's compensation insurance of the state of Oregon is not compulsory. The employer has a right to elect not to come under the act, and by so doing he is stripped of certain of the defenses specified in the statute, such as negligence of a fellow servant, and assumption of risk. See sections 6614-6620, Laws of Oregon. The employer has the right to protect himself by other insurance for injury to his employees. The contract of insurance having relation to the Workmen's Compensation Act of Oregon, the appellant, in effect, places itself in the same relation to the injured workman as the state, and by the same token assumes the obligations and burdens of the employer. To recover under the policy, a causal relation between the accident and the employment must exist. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L. R. A. 1916F, 1164. It may also be said that an injury resulting from accident from inherent or congenital weakness of the employee, unknown to the employer, does not arise out of and in the course of his employment. Joseph v. United States Kimono Co., 194 App. Div. 568, 185 N. Y. S. 700; Van Gorder v. Packard Motorcar Co., 195 Mich. 588, 162 N. W. 107, L. R. A. 1917E, 522.

The court did not err in not dismissing the action because a release had not been previously presented. The sufficiency of the complaint was not challenged, nor is such defense pleaded in the answer. It was sufficient, on this record, to meet this condition of the policy by the plaintiff, appellee, tendering a release to the defendant, appellant, on the trial before judgment. The only function of the release was to discourage litigation and afford release from liability. If release had been tendered and accepted, no action would have been necessary, and, if accepted on tender at the trial, the action would have ended. In the one case, no costs would have been made, and, in the other case, the appellee would have been required to pay the costs, and the judgment in this case affords a valid release. Hill v. Den, 121 Cal. 42, 53 P. 642, and Imp. Land Co. v. Imp. Irr. Dist., 173 Cal. 668, 161 P. 116, are not in point, nor Putney v. Whitmire (C. C.) 66 F. 385, and Emerson v. Hubbard (C. C.) 34 F. 327, persuasive.

The court did not err in finding that the injury was received in the course of appellee's employment. There was no intervening relation or act to interrupt the continuity of conduct of the appellee in his engagement in felling snags and clearing the land. Cutting the shrub or twig with a jack-knife was an act in harmony with and in the course of employment, in a very small way. There was no interrupting cause or exposure to new danger, no risk to danger from other agencies. It was at the place of and in line with his work. It is not material that the twig was little and cut with a jackknife, instead of a shrub or snag and cut with an axe. The relation of employer and employee was not suspended. Many cases hold that an employee is deemed as a general rule to be engaged in the employment in going to and from his work upon the premises. 18 R. C. L. 584, § 89. Necessary incidents of life enter into the employment and do not suspend the relation (Ryan v. Fowler, 24 N. Y. 410, 82 Am. Dec. 315), including eating lunch on the premises (18 R. C. L. 583). In Taylor v. Bush, 6 Pennewill (Del.) 306, 66 A. 884, 12 L. R. A. (N. S.) 853, the plaintiff was employed as a helper on a coal wagon. The employees were in the habit of bringing their lunch each day to the stable and stable yard of the defendant and there eating their noonday meal, either in the stable or the stable yard, leaving their dinner pails in the stable until the end of the day's work. On the day of the injury, the plaintiff, after receiving his slip and money at the company's office, which was situated about a block from the company's stable, walked to the stable yard to get his dinner pail. As he was walking on a passageway inside of the company's stable yard, he was injured, and the court held that the injury arose out of and in the course of his employment. The Supreme Court of Texas, in Lumberman's Reciprocal Ass'n v. Behnken et al., 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402, holds that an injury to an employee of a mill, who resides in a house furnished by the mill company, when crossing by the customary route a railroad located between the mill and the home when returning to his work after eating his dinner, is within the provisions of the Workmen's Compensation Act, that injury shall be considered in the course of employment when having to do with and originating in the work of the employer and received by the employee while engaged in or about the furtherance of the affairs or business of the employer. In Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 6 A. L. R. 1145, the court said:

"In an action under the Workmen's...