Brown v. Department of Labor and Industries

• Decision Date: 15 July 1925
• Docket Number: 19181.
• Court: Washington Supreme Court
• Parties: BROWN v. DEPARTMENT OF LABOR AND INDUSTRIES, Division of Industrial Insurance.

237 P. 733

135 Wash. 327

BROWN v. DEPARTMENT OF LABOR AND INDUSTRIES, Division of Industrial Insurance.

No. 19181.

Supreme Court of Washington

July 15, 1925

Department 1.

Appeal from Superior Court, King County; Smith, Judge.

Proceeding under the Workmen's Compensation Act by Marie Brown claimant, for compensation for the death of her husband killed while in the employ of the Washington Iron Works. Compensation was denied by the Department of Labor and Industries, Division of Industrial Insurance, but on appeal the superior court entered a judgment for claimant, and the Department appeals. Reversed, and action of the Department of Labor and Industries affirmed.

John H Dunbar and M. H. Wight, both of Olympia, for appellant.

Elias A. Wright and Sam A. Wright, both of Seattle, for respondent.

BRIDGES J.

The question in this case is whether the complainant has a valid claim against the state industrial insurance fund because of the death of her husband.

The facts are stipulated: The deceased was in the employ of the Washington Iron Works, located in the city of Seattle, and while so engaged his work was extrahazardous, within the contemplation of the state Workmen's Compensation Act (Rem. Comp. Stat. §§ 7673-7796). Under the terms of his employment he commenced work at 7:30 o'clock in the morning, and ceased at 4 o'clock in the afternoon, and received a certain hourly compensation. On May 1 of last year he concluded his day's work as usual at 4 o'clock in the afternoon. Immediately after checking out he proceeded towards his home (several miles away) in his own automobile, going thither in the usual and most direct route. After having so traveled for a distance of about 4 1/2 miles from the premises of his employer, and while crossing a bridge over the Duwamish river, he was precipitated into the water and drowned. His widow, who is the plaintiff in this case, made application to the state industrial fund for compensation. The department in control of that fund denied the claim. Upon a hearing in the trial court, the claim was allowed, and, from a judgment to that effect, the state has appealed to this court.

But two sections of our Workmen's Compensation Act are directly involved. Section 7675, Rem. Comp. Stat., says:

'* * * Workman means every person in this state who is engaged in the employment of an employer coming under this act whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer.'

Section 7679, Rem. Comp. Stat., reads as follows: 'Each workman who shall be injured whether upon the premises or at the plant, or he being in the course of his employment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.'

We have italicized the parts most applicable.

It is conceded that at the time of his death deceased was not on the premises of his employer, but was on the public road more than 4 miles therefrom. The real question, then, to be determined, is whether the employee was at the time of his death 'in the course of his employment away from the plant of his employer.' The respondent seems to admit that if the deceased had met his death on his way home, but while he had turned aside to engage in some business or matter peculiar to his own interest, there would be no valid claim, but insists that, since he was going directly to his home from his place of employment, using the usual means and route of travel, he was at the time of his death still in the course of his employment. The appellant contends that the employment ceased when the deceased left his employer's premises.

We think it can be safely said that, ordinarily, when an employee is injured while traveling the public road on his way to or from his place of work, by conveyances not furnished by the employer, and he is not to be paid for the time consumed in going to and coming from his work, and at the time of his injury he is not on or in the immediate proximity of his employer's premises, the injury does not arise out of the employment under the terms of our statutes. But there are a number of cases holding that the employment is not limited to the exact moment of arrival at the place of work nor to the moment of departure therefrom; that, if in going to or coming from work the injury occurs in a public road, close to the employer's premises, and which road is the only way provided for reaching the premises, there may be a valid claim against the fund. In some of the cases it is said that the fact that the accident happens upon a public road which is close to the employer's premises, and that the danger is one to which the general public is exposed, is not conclusive against the existence of the relation of employer and employee, if the danger be one to which the employee, by reason of and in connection with his employment is subjected peculiarly or to an abnormal degree. De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88, L. R. A. 1916A, 329; Procaccino v. Horton & Sons, 95 Conn. 408, 111 A. 594; Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A. L. R. 1404; In re Harry Cook, Employers' Liability Assurance Corp., 243 Mass. 572, 137 N.E. 733, 29 A. L. R. 114; Wirta v. North Butte Min. Co., 64 Mont. 279, 210 P. 332, 30 A. L. R. 964; Cudahy Packing Co. v....