Claim Mrs. Chun Wong Chee (Widow Chee v. Yee Wo Chan Co.

• Decision Date: 15 February 1923
• Docket Number: No. 1405.,1405.
• Citation: 26 Haw. 785
• Parties: IN THE MATTER OF THE CLAIM OF MRS. CHUN WONG CHEE (WIDOW OF CHUN CHEE, DECEASED,) FOR COMPENSATION v. YEE WO CHAN COMPANY AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED.
• Court: Hawaii Supreme Court

26 Haw. 785

IN THE MATTER OF THE CLAIM OF MRS. CHUN WONG CHEE (WIDOW OF CHUN CHEE, DECEASED,) FOR COMPENSATION

v.YEE WO CHAN COMPANY AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LIMITED.

No. 1405.

Supreme Court of the Territory of Hawai‘i.

Argued February 5, 1923.

Decided February 15, 1923.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. J. T. DEBOLT, JUDGE.

(Perry, J., dissenting.)

Syllabus by the Court

The conclusions of fact or rulings of law included in the award of the industrial accident board are not binding upon the circuit court on appeal and the decision of the circuit court must find support, if at all, in the evidence adduced before it.

The circuit court may in “stating its reasons” for its decision in jury-waived cases, as required by the provisions of section 2380, R. L. 1915, include by adoption or confirmation the conclusions of fact or rulings of law of the industrial accident board.

Where the evidence is not conflicting erroneous findings of fact by the trial court do not constitute reversible error. Upon that state of the case it is the duty of the court to disregard such findings and decide as a matter of law what the facts prove.

To warrant compensation under the Workmen's Compensation Act it must appear that the workman received personal injury (1) by accident (2) arising out of and (3) in the course of his employment. All these essential elements must coexist. The absence of any one defeats compensation.

For an accident to “arise out of employment” there must be reasonably apparent a casual connection between the conditions under which the work is required to be performed and the resulting injury; that is, the injury must reasonably appear to have had its origin in a risk connected with or reasonably incidental to the work and to have flowed from that source as a rational consequence thereof.

An accident arises in the “course of the employment” if it occurs while the employe is doing what a man so employed may reasonably do within the time during which he is employed and at a place where he may reasonably be during that time.

A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.

An accident is an unlooked for, untoward event which is not expected or designed.

The burden of proof rests upon the applicant to establish all the facts necessary to entitle him to compensation under the Workmen's Compensation Act. Factors necessary to support the claim cannot be left to surmise, conjecture, guess or speculation. Nor will proof of facts equally consistent with a right to compensation and with the absence of such right be sufficient.

The provisions of the Workmen's Compensation Act should be liberally construed.

Where one employed as a bill collector, while on his way afoot to collect a bill which his employer has instructed him to collect, accepts an invitation to ride the whole or a part of the way in a private automobile and in alighting therefrom accidentally receives injuries; and it appears that theretofore with the knowledge and without the objection of his employer the employe has been accustomed to use, among other means, public automobiles to travel from place to place to collect bills due his employer; such injuries arose “out of and in the course of the employment” of such employe.

Where one undertakes an errand with the expressed intention of going to a certain place for a certain purpose the unexplained discontinuance en route of the initial means of transportation does not imply an abandonment of such intention where other customary means of continuance of the errand are immediately available although less convenient. A motive or intention once shown to exist will be presumed to continue until the contrary is shown.

A. L. Castle ( Robertson & Castle on the brief) for plaintiffs in error.

I. M. Stainback for defendant in error.

PETERS, C. J., PERRY AND LINDSAY, JJ.

OPINION OF THE COURT BY PETERS, C. J.

This case arises out of a claim for compensation under the Workmen's Compensation Act made by the defendant in error in respect of the death of her husband. The industrial accident board awarded compensation and plaintiffs in error appealed to the first circuit court. The circuit court, after trial had jury waived, awarded compensation. Following is the court's decision omitting the award of the industrial accident board which the court quoted therein in full:

“Chun Chee, deceased, on August 12, 1921, was, and for some time prior thereto had been, employed as clerk and collector for Yee Wo Chan Company, general merchants doing business in Honolulu. On the date mentioned, Chun Chee, while riding in an automobile on his way to collect an overdue account for his employers, Yee Wo Chan Company, was thrown or fell from the automobile into the street, near the corner of King and Nuuanu streets, in Honolulu, receiving personal injuries from which he died the same day. The injuries thus received by him, as disclosed by the evidence adduced at the trial in this court, arose out of and in the course of his employment with Yee Wo Chan Company.

The widow of the deceased, Mrs. Chun Wong Chee, on behalf of herself and her two minor children, having filed notice of the injury and death of her husband and also her claim for compensation with the Industrial Accident Board of the City and County of Honolulu, pursuant to Act 221 of the Laws of 1915 as amended by Act 227 of the Laws of 1917, and the board having heard and considered the claim, on January 11, 1922, duly made and entered the following finding of facts and order:” (here follows in full the award of the industrial accident board)

“From the order thus made and entered by the board Yee Wo Chan Company and the Employers' Liability Assurance Company, Limited, of London, England, insurance carrier of Yee Wo Chan Company, appealed to this court; and trial by jury being waived the cause was heard by the court.

Upon the evidence adduced at the hearing in this cause I find the facts to be the same in all respects as found and set forth in the order made and entered by the Industrial Accident Board, a copy of which is quoted above, and which order is hereby adopted and confirmed in all respects and the same is made a part of this decision.”

Judgment was entered accordingly.

Plaintiffs in error assign the following errors of the trial court:

“1. That the circuit court erred in finding and deciding that on August 12, 1921, Chun Chee, while riding in an automobile on his way to collect an overdue account for his employer, Yee Wo Chan Company, was thrown or fell from the automobile into the street.

2. That the circuit court erred in finding and deciding that the injuries thus received by him (Chun Chee) as disclosed by the evidence adduced at the trial in said court, arose out of and in course of his employment with Yee Wo Chan Company.

3. That the circuit court erred in finding that facts shown by the evidence adduced in said court were the same in all respects as found and set forth in the order made and entered by the Industrial Accident Board.

4. That the circuit court erred in adopting and confirming the said order.

5. That the circuit court erred in rendering and entering its judgment on the 19th day of April, 1922, in favor of the claimant and against Yee Wo Chan Company and Employers' Liability Assurance Corporation, Limited, to recover compensation in a sum not to exceed $5,000.”

The third and fourth assignments of error need be considered only so far as they involve assignments of error 1 and 2. The conclusions of fact or rulings of law included in the award of the industrial accident board are not binding upon the circuit court on appeal and the decision of the circuit court must find support, if at all, in the evidence adduced before it. The court may, however, in “stating its reasons” for its decision required by the provisions of section 2380, R. L. 1915, include by adoption or confirmation the conclusions of fact or rulings of law of the industrial accident board. So long as the circuit court, when rendering its decision jury waived, states its reasons therefor, it makes no difference whether those reasons are set forth independently of or by reference to and in confirmation of the award of the industrial accident board.

Assignment 1. That the deceased immediately prior to the accident was “riding in an automobile on his way to collect an overdue account for his employers Yee Wo Chan Company,” is amply sustained by the evidence. The deceased at the time of the accident was employed as a salesman and collector by Yee Wo Chan Company of Honolulu, his hours of employment being from 8 a. m. to 9 p. m. The accident happened at about 6 p. m. On the morning of the day of the accident he had been instructed by the manager of Yee Wo Chan Company to collect an overdue bill of a customer living in Manoa, to which he replied that he was then too busy but would do so after dinner. A few minutes before the accident the deceased, while on King street near Maunakea street, was invited by a friend, driving a private automobile along King street toward Nuuanu street, to ride with him. The deceased accepted the invitation and after getting into the automobile informed his friend that he was on his way to Circle lane where the company's automobile was being repaired, from which place he was going to Manoa to collect a bill. Circle lane runs northerly from Beretania street between Punchbowl and Alapai streets and is on a direct line from the point where the deceased got into the automobile to Manoa. The automobile with the deceased as a passenger continued along King street to Nuuanu. It was while the automobile was turning northerly into Nuuanu street that the accident happened.

The finding that the deceased “was thrown or fell from the automobile” is not sustained by the evidence. This does not mean, however, that plaintiffs in error by reason thereof...