Colson v. Steele, 7833

• Decision Date: 10 January 1953
• Docket Number: No. 7833,7833
• Citation: 73 Idaho 348,252 P.2d 1049
• Parties: COLSON v. STEELE et al.
• Court: Idaho Supreme Court

Page 1049

252 P.2d 1049

73 Idaho 348

COLSON v. STEELE et al.

No. 7833.

Supreme Court of Idaho.

Jan. 10, 1953.

Rehearing Denied Feb. 16, 1953.

Elam & Burke and Clarence L. Hillman, Boise, for appellant.

E. B. Smith, Boise, for respondents.

PORTER, Chief Justice.

On December 29, 1950, appellant was and had been since September 25, 1950, in the employ of respondent Steele. He was a member of a surveying crew consisting of Charles McHarg, foreman, Lloyd Farmer, Marshal Spraker and appellant. The crew was engaged in surveying under a contract respondent Steele had with the Federal Government. The work was being done on a large tract of land at the Atomic Energy Project in Butte County.

The crew worked eight hours per day. Its members checked in at the government station on the project each morning at 8 A.M. and checked out at 4:30 P.M. They had one-half hour for lunch. Each member of the crew furnished his own lunch with the exception of drinking water provided by the employer. Lunch was eaten while in the field on the project. The employer furnished a truck to the crew for use in the field for transporting its members and their equipment. Appellant was the driver of the truck on the day of the hereinafter described accident.

It was usual and customary for members of the surveying crew to carry pistols in holsters on their persons when working at considerable distances from the central station. These firearms were used at such times for target practice and to shoot rabbits found on the project. The foreman, from time to time, indulged in this practice with other members of the crew.

On the day in question, the crew was on the top of a mountain when a particular survey was finished just before noon. The foreman decided to have lunch then and after lunch to move further easterly to work in the afternoon. The truck was driven down the hill by appellant about a mile to a place somewhat sheltered from the cold wind. A fire was built for warmth and to toast sandwiches. Following lunch the foreman and Farmer sat about the fire to keep warm while appellant and Spraker engaged in target pratice nearby, shooting at an orange peel on a rock. Each fired three shots from his own gun and then they walked over to the target and examined the same to determine their marksmanship. Each then holstered his gun. Appellant turned and took a few steps toward the fire when Spraker's gun dropped from his holster and discharged a bullet which ricocheted and struck appellant in the left thigh and penetrated into his groin and abdominal region. The accident happened 15 minutes or more after the expiration of the half-hour lunch period. The crew was 'more or less getting ready to go' to the truck when the accident occurred.

Appellant was taken to a hospital in Blackfoot and later removed to a hospital in Boise. It was found necessary to amputate his leg first just below the knee and later above the knee.

Appellant duly filed his application for workmen's compensation and petition for hearing thereon. The matter was heard by the board and an order was entered denying compensation to appellant. From such order this appeal is prosecuted.

The sole question presented on this appeal is whether the accident causing appellant's personal injury arose out of and in the course of his employment.

The facts hereinbefore recited were found by the board and are not in dispute. Where there is no dispute in the evidence and it is not reasonably susceptible of more than one inference, whether or not an accident to a workman arose out of and in the course of his employment is a conclusion of law rather than a finding of fact and may be reviewed by this court. Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; Vaughn v. Robertson & Thomas, 54 Idaho 138, 29 P.2d 756; Howard v. Texas Owyhee M. & D. Co., 62 Idaho 707, 115 P.2d 749; Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712; Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511.

We have held that injuries sustained by an employee upon premises owned or controlled by the employer are generally deemed to arise out of and in the course of employment. Burchett v. Anaconda Copper Min. Co., supra; Dutson v. Idaho Power Co., 57 Idaho 386, 65 P.2d 720; Skeen v. Sunshine Min. Co., 60 Idaho 741, 96 P.2d 497; Totton v. Long Lake Lumber Co., 61 Idaho 74, 97 P.2d 596; Louie v. Bamboo Gardens, supra.

The accident to appellant occurred on premises where he was required to work by his employer. It occurred during an extension by the foreman of the half-hour lunch period. Appellant was required by the nature of his employment to carry his lunch and eat it on the premises. At least after the expiration of the half-hour lunch period, appellant was under the control of the foreman and subject to his orders. After the expiration of the lunch period appellant's time belonged to and was being paid for by respondent, Steele. From these facts it follows that the accident to appellant arose in the course of his employment. 'A worker eating lunch on the employer's premises is almost universally considered as 'in the course of' the employment. DeStefano v. Alpha Lunch Co., 1941, 308 Mass. 38, 30 N.E.2d 827; Blanche Charon's Case, 1947, 321 Mass. 694, 75 N.E.2d 511.' Geary v. Anaconda Min. Co., 120 Mont. 485, 188 P.2d 185, 190.

The remaining question is, did the accident arise out of appellant's employment? In order for the accident to be held to have arisen out of employment, it is not necessary that it arise out of some act directly furthering the work of the employer. It is sufficient if the accident arises out of a risk incidental to the work as customarily conducted. Pacific Employers Ins. Co. v. Industrial Acc. Com'n, 26 Cal.2d 286, 158 P.2d 9, 159 A.L.R. 313; Goodyear Aircraft Corp. v. Industrial Com'n, supra; Geary v. Anaconda Copper Min. Co., supra; In re Loper, 64 Ind.App. 571, 116 N.E. 324; State ex rel. Johnson Sash & Door Co. v. District Court, 140 Minn. 75, 167 N.W. 283, L.R.A. 1918 E, 502.

In Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, at pages 14-15, the court said:

'Nor is it necessary, as these cases show, that the particular act or event which is the immediate cause of the injury be itself part of any work done for the employer by the claimant or others. Otherwise no award could be given for many injuries now compensated, such as those caused by stray bullets, unexplained falls, objects falling from outside the employer's premises and work, many street risks, horseplay, most assaults and many other causes. * * * Not that the act is in the line of duty, or forwards the work, or creates special risk, but that the work brings the employee within its peril makes it, for purposes of compensation, 'part of the work".

In this case, the carrying of the firearms and the indulgence in pistol practice both during the hours of employment and at the lunch hour was usual and customary. Such practice was known, condoned and participated in by the foreman. Great Western Power Co. of California v. Industrial Accident Commission, 187 Cal. 295, 201 P. 931. It had become a risk of the work as usually conducted.

In the recent Montana case of Geary v. Anaconda Copper Min. Co., supra, a truck driver was engaged in playing handball during the lunch period with other employees in a garage owned by defendant and situated on the premises. Defendant's foreman was present and on other occasions had participated in the game. The game had been played daily for about three months. It was necessary for the employees to eat their lunch on the premises. The court held that an injury occurring to the employee during the game of handball was compensable. The various authorities and the conflicting views of the subject are discussed at length in this case.

The Montana case cites with approval Conklin v. Kansas City Public Service Co., 226 Mo.App. 309, 41 S.W.2d 608, 614, where an accident happened during the lunch period and while workmen were engaged in playing indoor baseball, wherein the court held the injury arose from something which had become an incident to the employment and said: 'We must hold, however, that the greater weight of authority is to the effect that where an injury arises out of a settled practice or condition known to the employer, with which there is a causal relation between the injury, and the employment, the injury is compensable.'

The Montana case also cites with approval Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 375, 6 A.L.R. 1145. In such case a seventeen year old girl was accustomed to taking her lunch with her and eating it on the premises of her employer with other girls in her department. She was paid by the hour but was not paid for the time included in the lunch period. The eating was usually done in fifteen minutes. For the other fifteen minutes, the girls amused themselves by riding on a small truck used in their department. This was done with the knowledge and consent of the foreman. No representative of the employer objected to this practice. The court pointed out that injuries received in play are not usually compensable but then went on to say:

'If the present case is to be taken out of the general rule, it must be upon the ground that the habit of the girl employes to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by anyone representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are held liable for the results of horseplay which had grown into a custom.'

Respondent relies upon the two Idaho cases of Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927, and Parker v. Twin Falls County, 62 Idaho 291, 111 P.2d 865. We do not deem either of such cases controlling herein. In the Stewart case, the superintendent of a...