Burchett v. Anaconda Copper Mining Co.

Decision Date20 December 1929
Docket Number5225
Citation283 P. 515,48 Idaho 524
CourtIdaho Supreme Court
PartiesH. T. BURCHETT, Respondent, v. ANACONDA COPPER MINING COMPANY, Employer, and AETNA CASUALTY & SURETY COMPANY, Surety, Appellants

WORKMEN'S COMPENSATION ACT-APPEAL FROM INDUSTRIAL ACCIDENT BOARD-QUESTIONS OF LAW AND FACT-JURISDICTION OF COURT-EMPLOYEE SLIPPING ON COMPANY WALK-LIABILITY.

1. Court, under C. S., sec. 6270, is limited on appeal from decision of Industrial Accident Board to a review of questions of law, and has no power or authority to alter or disturb findings of fact supported by competent or substantial evidence.

2. Injury sustained by employee on employer's premises, as result of falling on walk which was slippery by reason of snow and sleet upon it, held as a matter of law to have "arisen out of and in course of employment," though employee at time had finished work for day.

3. Injuries sustained by an employee upon premises owned or controlled by his employer are generally deemed to have arisen out of and in course of employment.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. Jay L. Downing, Judge.

Proceeding under the Workmen's Compensation Act to recover compensation for injury, opposed by employer and surety. Judgment of the district court reversing order of Industrial Accident Board denying compensation, and making award in favor of claimant. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

E. B Smith, for Appellants.

The district court has no authority or jurisdiction to review the findings of the board member, nor has it jurisdiction to make findings of its own. Its jurisdiction is limited to a review of the finding of the Industrial Accident Board, which finding supersedes that of the board member. (C. S., secs 6268, 6270, 6270a; Di Giovanni's Case, 255 Mass. 241, 151 N.E. 91; Johnson's Case, 258 Mass. 489, 155 N.E. 460; Thompson v. Twiss, 90 Conn. 444, 97 A. 328; Industrial Commission of Colorado v. General Accident Fire & Life Assur. Corp., 71 Colo. 115, 204 P. 338; California Casualty Indemnity Exch. v. Industrial Acc Com., 190 Cal. 433, 213 P. 257; O. W. Rosenthal Co. v. Industrial Commission, 290 Ill. 323, 125 N.E. 250; Wieber v. England, 52 S.D. 72, 216 N.W. 850.)

Where an employee receives personal injury by accident while going to or from work, such injury does not arise out of and in the course of his employment unless, at the time of injury, the workman was constructively under the dominion of his employer in both of the following particulars, to wit: (1) Unless he was traveling a pathway provided by his employer, and (2) unless the pathway was the sole and only means of ingress and egress to and from the employer's plant, so that he was required to use it in going to and from his work; it is immaterial that the accident occurs on the premises where the employer's operations are being carried on. Walker v. Hyde, 43 Idaho 625, 253 P. 1104; De Constantin v. Public Service Com., 75 W.Va. 32, 83 S.E. 88, L. R. A. 1916A, 329; Hills v. Blair, 182 Mich. 20, 148 N.W. 243; Morey v. City of Battle Creek, 229 Mich. 650, 38 A. L. R. 1039, 202 N.W. 925; Kowalek v. New York Consol. R. Co., 229 N.Y. 489, 128 N.E. 888; Boatright v. Georgia Casualty Co., (Tex. Civ. App.) 277 S.W. 802, 803; Diaz v. Warren Bros. Co., 95 Conn. 287, 111 A. 206.)

R. J. Dygert, for Respondent.

This court has held that the district court does have jurisdiction to enter judgment in the two following cases: Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Taylor v. Blackwell Lbr. Co., 37 Idaho 707, 218 P. 356.

BUDGE, C. J. T. Bailey Lee, J., concurs, GIVENS, J., Concurring Specially. WM. E. LEE, J., Mr. Justice Varian, Concurring in Part and Dissenting in Part.

OPINION

BUDGE, C. J.

Respondent received a personal injury by accident while in the employ of the Anaconda Copper Mining Company at Conda, on March 14, 1927, and subsequently filed a claim for compensation with the Industrial Accident Board. Evidence in support of and in opposition to the claim was heard before one of the board members who thereafter made written findings and award in favor of respondent, which were ordered filed in the office of the Industrial Accident Board "and hereby approved and confirmed subject to the right of review by any party thereto." On petition for review by appellants, employer and surety, the decision of the board member hearing the cause was set aside and the application of respondent for compensation denied. Respondent then appealed to the district court, where the findings of the board on review were set aside and those made by the board member originally hearing the cause reinstated as findings of the district court. The appeal to this court is taken by the employer and surety from the judgment of the district court awarding compensation to respondent.

It is well settled that on appeal from a decision of the Industrial Accident Board the court is limited to a review of questions of law. (C. S., sec. 6270; In re Hillhouse, 46 Idaho 730, 271 P. 459; Kaylor v. Callahan Zinc-Lead Co., 43 Idaho 477, 253 P. 132; Johnston v. White Lumber Co., 37 Idaho 617, 217 P. 979.) As said in Ybaibarriaga v. Farmer, 39 Idaho 361, 369, 228 P. 227, 229:

"It is the duty of the industrial accident board to find and determine the facts which the district court on review of an award may not disturb and must accept as final, provided such findings are supported by competent or substantial evidence, and it is within the power of the court to review any legal conclusion found by the board upon the evidence, and in doing so it may consider the evidence adduced before said board, its competency, relevancy and materiality, to determine whether or not such evidence sustains the findings of the board, or whether or not said board has made a proper application of the law to the evidence. In cases where the evidence is conflicting, the findings of the board are binding upon the court and cannot be disturbed by it, provided there is competent evidence to support them. There must be some competent evidence to support the findings and decision, and if such findings and decision of the board are clearly unsupported as a matter of law it will be within the province of the court to set aside said findings and decision and render judgment accordingly. In cases where the evidence is not conflicting and not in dispute, . . . . the application of the law to such undisputed evidence raises a question of law, not of fact."

The district court, therefore, has no power or authority to alter or disturb the findings of fact of the Industrial Accident Board when they are supported by competent or substantial evidence, but may review the legal conclusion drawn therefrom in determining whether or not the board has made a proper application of the law to the evidence, provided there is no substantial conflict in the evidence. The district court in the instant case erred in assuming to make findings of fact, adopting as its findings those made by the one member of the Industrial Accident Board, as there is competent and substantial evidence to support the findings of fact made by the Industrial Accident Board on review. There is no material or substantial conflict in the evidence such as to make the findings of the board final and conclusive for all purposes, and it remains to be seen whether the application of the law to the evidence supports the award of the district court, or the decision of the board that the evidence did not justify an award of compensation. The error of the district court mentioned would not be sufficient reason to reverse the judgment if the conclusion be that the evidence does not support the decision of the board denying compensation but justifies the judgment of award; it being within the province of the court under the circumstances latterly mentioned to set aside the findings and decision and render judgment accordingly. (Ybaibarriaga v. Farmer, supra.)

We shall set out in substance the material findings of fact of the Industrial Accident Board on review, as a fair statement of the evidence, for the purpose of determining whether or not, as a matter of law, the injury sustained by respondent was "by accident arising out of and in the course of" his employment, as controlling the question of his right to compensation.

On March 14, 1927, and for some time prior thereto respondent was and had been in the employ of the Anaconda Copper Mining Company at Conda, working underground and within the mine of the company as a track foreman and laborer. His regular hours of employment were from 8 o'clock in the morning to 5 o'clock in the afternoon, but pursuant to a custom sanctioned by the company, respondent went to work in the mine a few minutes before 8 o'clock and quit work for the day at about ten minutes before 5 o'clock. About a quarter of a mile from the mine were bunkhouses and boarding-houses provided by the company for the convenience of its employees, and respondent lodged at one of the bunkhouses. A road and board walk leading to and from the mine and the vicinity of the bunkhouses were the main traveled ways. The board walk was built by the company for the convenience of its workmen and others having occasion to travel on foot to and from the mine, and while both the road and walk were used by workmen, the walk was used to a somewhat greater extent by pedestrian traffic than was the road. A number of footpaths also led to and from the mine and were used by workmen. They had the option of choosing any or either of the paths or ways in going to or from their work as suited their convenience. The employees of the company, including respondent, were requested each day to make out a "time...

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