Diffendaffer v. Clifton

• Decision Date: 19 July 1967
• Docket Number: No. 10007,10007
• Citation: 430 P.2d 497,91 Idaho 751
• Parties: Eugene DIFFENDAFFER, Claiminat-Respondent, v. Thomas G. CLIFTON, James L. Lafferty, and Truck Insurance Exchange, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 497

430 P.2d 497

91 Idaho 751

Eugene DIFFENDAFFER, Claiminat-Respondent, v. Thomas G. CLIFTON, James L. Lafferty and Truck Insurance Exchange, Defendants-Appellants.

No. 10007.

Supreme Court of Idaho.

July 19, 1967.

Elam, Burke, Jeppesen & Evans, Boise, for appellants.

Coughlan & Imhoff, Boise, for respondent.

McQUADE, Justice.

Respondent was permanently totally disabled when an automobile, in which he was a passenger, went out of control while traveling on a national forest development road and tumbled down an embankment. Respondent was then en route to a site where an association composed of his employers, appellants Thomas Clifton and James L. Lafferty, were engaged in tree-planting under contract with the federal government.

Respondent, claiming that he was entitled to workmen's compensation because of the accident and resulting disability, instituted the present proceeding before the Industrial Accident Board against appellants Clifton and Lafferty and their surety, appellant Truck Insurance Exchange. After a hearing, the Board found that 'the accident and resulting injury arose out of and in the course of his (respondent's) employment' with appellants' association. This finding and conclusion was based on a more specific finding that although the accident which caused respondent's disability occurred off the premises of his employers while he was going to work, nevertheless 'The risk or hazard of the travel (during which the accident happened) * * * were (sic) exposures occasioned by the nature of claimant's (respondent's) employment' with appellants' association. On its findings, the Board entered an award granting respondent compensation for his disability. This is an appeal from that award.

Appellants have restricted their arguments on this appeal to a contention that the Board erred by finding the automobile accident of present concern arose out of and in the course of respondent's employment with appellants' association. The facts necessary for consideration of this contention are detailed hereinafter.

On the day of the accident, respondent, then a sixteen-year-old high school student, and John Cook, a fifteen-year-old student, left their homes in Boise, Idaho, about 5:00 a. m., an with Cook driving proceeded to Idaho City, Idaho. Respondent and Cook were part of a group of high school and college students whom appellants' association then hired on weekends (since schools were still in session) to plant trees in the Lowman ranger district of the Boise National Forest, northwesterly of Idaho City. At six o'clock that morning, respondent and Cook had rendezvoused at the Vigilante Cafe in Idaho City with some foremen and other employees of appellants' association. Concerning the purpose of this rendezvous, the Board found:

'Because of the remoteness of the area and the Employer's experience with losing employees on the way to the remote planting site, the weekend employees, as Claimant, were directed to meet in Idaho City. There, the Employer's (sic) foremen would meet the employees, assemble them, get their cars into line and lead the car caravan to the work site.'

The testimony conflicts regarding whether the weekend employees 'were directed to meet in Idaho City,' or merely informed that some of the foremen would be there as a conveience to the employees. Appellant Clifton testified that it was permissive with each employee whether he would meet the foremen at Idaho City. His pertinent testimony is as follows:

'Q Mr. Clifton, is it not true that these boys were directed when they were hired to meet or to assemble at a specified point, that point being the Vigilante Cafe generally in Idaho City?

'A They were told that they could meet there as a matter of convenience and that our Saturday foremen were going in and they would-one went ahead and one went behind-one would go ahead and one would go behind or just one would go ahead but he would head them into the area. The reason we decided to do that, it, like I say, was a convenience to them, but we have had fellows just strewn all over the country. We have sent any number of men out and they have never reached the planting area. It's just difficult to direct them. We would have flags and colored ribbons hanging on the trees and what not to direct them in their, but still a lot of them wouldn't get there.

'Q. You didn't pay them any mileage?

'A No, we did not.

'Q Or arrange for transportation. But you said, 'You be there however you can get there; you get your own transportation and be there at this time and place?

'A Right. Some went in Friday night and stayed at our campsite; others selected to go up early Saturday morning. But they were to report to work to our general camp there.

'Q But now at this Vigilante Cafe, you testified that you would lead them in. You mean you would caravan the cars; get them in line and lead them in, one foreman lead them and one bring up the rear?

'A Well, that's the way that it worked out, that the foremen were going in and they said, 'Well, fellas, stay behind us or stay ahead of us and we'll see that you get to our base camp.'

Clifton also said, however, that the caravan system served his convenience and admitted that his 'foremen were there basically to assemble these boys, get them into the line and get them up to the worksite.'

The testimony of several witnesses suggests that the rendezvous was in response to an express or implied direction by appellants Clifton or Lafferty or their foremen. Fred Frahm, an eighteen-year-old college student who was a weekend employee of appellants' association, testified that on the weekend before the accident, appellant Lafferty and a foreman had 'told me to go on up to Idaho City, to meet at the cafe there,' and on the day of the accident, Frahm met the other employees at the cafe under 'sort of a general understanding that we were supposed to go up in a group.' John Cook, respondent's driver, testified:

'The week before (the accident) after we finished on the job, the (an appellants' association's) foremen told us that we wouldn't be coming to the same area so we's have to meet at the (sic) Idaho City and then they'd take us up to the new site.'

Dennis Vogt, a twenty-year old Boise College student and weekend employee of the association, testified that the weekend before the accident, 'they (appellants' association's foremen) told us to go on up to the Vigilante Cafe,' and that on the day of the accident, 'we just surmised that we should go up there (the cafe) and wait for them (the foremen).' The testimony of Harold Eshelman, one of the association's foremen, contains the following:

'A * * * we did talk about gassing up at Idaho City of that particular morning and, thus, we would naturally meet there.

'A Everyone knew that we were going up that morning.

'Q And that you would stop at the Vigilante Cafe?

'A Yes.'

Respondent himself testified that appellant Lafferty has 'said to meet at the Vigilante Cafe in Idaho City' the weekend before the accident, and the forman on that weekend 'told us where to meet for the next week-end (that of the accident). Said (sic) the group would meet there (Vigilante Cafe in Idaho City) the next weekend.'

Besides the direct testimony presented immediately above, the record contains corroborative evidence supporting the Board's finding that respondent and his fellow employees were directed on behalf of appellants' association to rendezvous at Idaho City and from there to caravan into the planting-site. At the Vigilante Cafe, appellants' association's foremen sometimes explained the job to the employees and the latter sometimes signed their contracts. As the Board found, the route into the base camp was not marked with ribbons on the day of the accident, from which it might be inferred that the caravan system had superseded the association's earlier reliance on ribbons to mark the route in an effort to assure that employees would reach the planting-site. Appellant Clifton's testimony as quoted above supports such an inference. It should be noted too that respondent and his driver, Cook had been to the planting-site only once, on the previous weekend, and the appellants-employers themselves generally did not know the exact planting-sites for any given day until the forest service had decided the evening before.

Appellants' association paid respondent and the other weekend employees on a piecework basis, by the number of trees planted, and did not provide transportation nor reimburse them for travel expenses to and from work. However, the association made a travel expense bookkeeping adjustment to each employee's payroll voucher by listing thirty per cent of his gross pay as 'Travel' and so entering only seventy per cent as 'Adjusted Gross Wages'. Thus, if an employee earned $100.00 after normal deductions by planting the requisite number of trees he would receive $100.00 in his paycheck, but on the association's records for tax purposes $30.00 of his net pay would be listed as 'Travel.' Each employee, regardless of whether he himself drove to work, was a passenger in another's car, or camped at the planting-site, received the same deduction for travel. The Board recognized that this adjustment was primarily a device used to lessen the employee's taxes, but the Board also stated that the federal Internal Revenue Code permits travel expense deduction only when incurred 'in the course of employment.' ¹ Viewed in this perspective, the Board found, the adjustment 'is an indication that the Employer treated the travel expense as an item to be reimbursed to his employees; and an indicium that the travel was 'in the course of employment."

The principal purpose of the rendezvous at Idaho City was to enable appellants' association's employees and foremen to put their vehicles in line and travel into the planting-site in convoy formation. Concerning the first or lead vehicle, the Board found the weekend employees had been informed...