Cavilla v. Northern States Power Co.
| Decision Date | 04 December 1942 |
| Docket Number | 33198. |
| Citation | 6 N.W.2d 812,213 Minn. 331 |
| Parties | CAVILLA v. NORTHERN STATES POWER CO. et al. |
| Court | Minnesota Supreme Court |
Lystad, Mantor & Strauman, of Minneapolis, and Weyl & Weyl, of St. Paul, for relators.
George L. Siegel, of St. Paul, for interveners, amici curiae.
John A. Goldie and Samuel I. Sigal, both of Minneapolis, for respondent.
Syllabus by the Court.
1. Where, as here, an employee's services are required to be performed away from home at a specified place and during specified hours, an accidental injury occurring to the employee while engaged on a week-end trip to his home after completion of his week's work and while he is not performing a service by direction of his employer does not arise out of and in the course of the employment.
2. A finding that by custom such trips were an incident of the employment is not permissible upon the grounds that the employer knew that employes took such trips and consented to an arrangement of working hours during the week to enable employes to depart on such trips earlier than the regular quitting hour on the day of departure, where the undisputed evidence showed that the trips were not for the benefit or for any purpose of the employer, but exclusively for the benefit and purposes of the employes, and that the arrangement of working hours was not as of right following an established course of conduct, but under special arrangement in each instance, with the approval of the union's steward on the job, lest the arrangement constitute a violation of the contract under which the services were rendered.
The question in this compensation case, where an award of compensation was made to the deceased employee's dependents, is whether or not the employee's death arose out of and in the course of his employment.
The deceased was a member of a crew of employes, who lived in Minneapolis and St. Paul, sent by the employer from its headquarters in Minneapolis to Tracy, about 160 miles distant, to make certain changes and improvements in its substation located there. While the record is not explicit on the point, it is apparent that the parties contemplated that the work at Tracy required several weeks for its performance.
The employee's service was rendered under a written contract between the International Brotherhood of Electrical Workers and the employer. It is a rather lengthy document, filling a booklet of 23 printed pages, and governs in great detail the relations between the employer and the local union, of which deceased was a member, and all matters relating to hours of work, pay, expense allowances, and working conditions. It was executed January 1, 1940, and was to continue in effect until April 30, 1941.
So far as here material, the contract provided that the workday should be eight hours, from 8 a.m. to 5 p.m. with an hour for lunch or from 8 a.m. to 4:30 p.m. with one-half hour for lunch that each week employes should work five days, from Monday to Friday, inclusive, and that on out-of-town jobs, as here, so far distant as to make impracticable daily travel back and forth between the employes' homes and the job, the employer would furnish transportation to the work before it began and to their homes after the work was completed and, in addition, would pay the employes a stated sum for living expenses graduated downward from $16 to $9 per week depending upon the length of service on the job. While the work week consisted of five days, the subsistence and expense allowance was computed on a seven-day-week basis so as to include Saturday and Sunday, on which the men did not work.
The contract was entirely silent as to the time when the men were not employed. During their time off the men were not subject to the employer's control, and their time was their own do with as they pleased so far as the employer was concerned. Absent was any provision obligating the employer furnish its employes with transportation home on week-ends or pay the expenses of such trips. The employes often ok week-end trips their homes in their own aumobiles at their own expense.
Work on the job at Tracy began on Monday morning November 4, 1940. The following Monday was Armistice Day. Because the week-end holiday over Armistice Day consisted of three full days deceased and some other employes planned to return to their homes over the week-end. With the consent of the employer, they so arranged their working hours during the week that they got in a full week's work one hour before the regular quitting time on Friday, November 8.
In every instance, including the case at bar, where the employer consented to an arrangement of working hours so as to facilitate earlier departure on such trips than the regular quitting hour, the parties obtained the consent of the union's steward on the job, lest such arrangement involve a violation of the provisions of the contract between the employer and the International Union relating to working hours.
After work on Friday, the deceased and two other employes left Tracy for their homes in the automobile of a coemploye, Edward Bantle. They intended to return to Tracy to resume work on Tuesday morning, November 12.
The purpose of the trip was to enable the employes to spend the week-end at their homes with their families. It was not made to perform any duty to or to render any service for the employer. The employer did not have any control over the employes while they were on the trip. It did not specify the route they were to take.
En route the men stopped for supper. They then resumed travel, and when they reached a point about 115 miles distant from Tracy (six miles southwest of Glencoe) the automobile in which they were riding had a head-on collision with an automobile truck, with the result that the deceased and another employee were killed.
The commission awarded compensation upon findings that the accident arose out of and in the course of the employment upon the theory that the deceased was a traveling employee whose employment included as an incident thereof week-end trips home, which subjected him to road risks of the kind which caused his death, and that, aside from the employee's status as a traveling employe, the trip was by custom an incident of the employment.
The findings of the commission are assailed here by relator as utterly lacking in support in the evidence.
1. The workmen's compensation act provides that an employer shall be liable to 'pay compensation in every case of personal injury of his employee, caused by accident arising out of and in the course of the employee's employment,' Minn.St.1941, § 176.02, Mason St.1940 Supp. § 4272-1, and that, without otherwise affecting the meaning or interpretation thereof, the expression 'arising out of and in the course of employment' is declared 'not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service, at the time of the injury, and during the hours of service as such workmen; provided, that where the employer regularly furnishes transportation to his employees to or from the place of employment, such employees shall be held to be subject to this chapter while being so transported,' Id., § 176.01, subd. 11, Mason St.1927, § 4326[j].
No claim is made, and the evidence does not sustain a finding, that the employer furnished transportation on the trip in question. Hence, there could be no liability under the proviso that where the employer regularly furnishes transportation to his employes to and from the place of employment such employes shall be covered by the Workmen's Compensation Act. The contention of respondent is that the travel in question arose out of and in the course of decedent's employment as a necessary incident thereof.
In reviewing the findings of the commission we apply the well settled and oft reiterated rule that a finding of the industrial commission reasonably supported by the evidence, either by direct testimonial statement or permissible inference from the evidence, is final and must be sustained. Erickson v. Erickson & Co., 212 Minn. 119, 2 N.W.2d 824.
Of course, there can be no valid claim that the employee's accidental death occurred at a place where his services as such workman were being performed. In the final analysis, decision depends upon whether the evidence or the permissible inferences therefrom support a finding that the employee's accidental death occurred at a place where his services required his presence as a part of his service and during the hours of his service as such workman.
The employer's liability for compensation is to be determined under the parts of the statute mentioned without the proviso in § 176.02 (§ 4272-1). The proviso was added to provide coverage where the employerregularly furnishes transportation to his employes to and from the place of employment after our decision to the contrary in Nesbitt v. Twin City F. & F. Co., 145 Minn. 286, 177 N.W. 131, 10 A.L.R. 165. As we held in the Nesbitt and other cases, § 176.02 limits and restricts the operation of the words 'arising out of and in the course of employment' by excluding liability for injuries which occur away from the employer's premises and outside of the hours of service of employes or workmen. Gehrke v. Weiss, 204 Minn. 445, 284 N.W. 434; Kelley v. Northwest Paper Co., 190 Minn. 291, 251 N.W. 274; Otto v. Duluth St. R. Co., 138 Minn. 312, 164 N.W. 1020.
The words 'out of' and 'in the course of' are respectively requirements of cause or origin and of time and place of the injury. Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 297 N.W. 19. While we have refrained from adopting an inclusive definition...
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