Ellis Clint Totton v. Long Lake Lumber Company

• Decision Date: 22 December 1939
• Docket Number: 6713
• Citation: 61 Idaho 74,97 P.2d 596
• Parties: ELLIS CLINT TOTTON, Appellant, v. LONG LAKE LUMBER COMPANY, F. D. ROBINSON and NORTHWEST INDEMNITY EXCHANGE, Respondents
• Court: Idaho Supreme Court

97 P.2d 596

61 Idaho 74

ELLIS CLINT TOTTON, Appellant, v. LONG LAKE LUMBER COMPANY, F. D. ROBINSON and NORTHWEST INDEMNITY EXCHANGE, Respondents

No. 6713

Supreme Court of Idaho

December 22, 1939

CONSTITUTIONAL LAW-JURISDICTION OF SUPREME COURT-WORKMEN'S COMPENSATION-MEDICAL AND SURGICAL TREATMENT-ACCIDENT ARISING OUT OF AND IN COURSE OF EMPLOYMENT.

1. Employers making adequate medical treatment available to injured employee were not liable for expense incurred by him in procuring treatment from another physician than one with whom employers contracted for treatment of injured employees where employers and such employee did not enter into contract waiving statutory provisions requiring employer to provide reasonable medical treatment for injured employee. (I. C. A secs. 43-1107, 43-1108.)

2. The Industrial Accident Board's finding, supported by substantial evidence, that injured employee was told by employers' agent to go to certain physician for treatment, and knew of hospital contract between employers and such physician, is conclusive on appeal to Supreme Court from board's order denying such employee recovery of amount spent by him for another physician's services, as such court's jurisdiction is limited by Constitution to review of law questions. (I. C. A., sec. 43-1107; Const art. 5, sec. 9, as amended, Sess. Laws, 1937, p. 498.)

3. An injury to log cutter by fall from lumber camp bunk, furnished him by employers pursuant to agreement made at time of employment, "arose out of and in the course of his employment" within Workmen's Compensation Act.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Section 9, art. V of the constitution limits the jurisdiction of the supreme court, on appeal from orders of the industrial accident board, to a review of questions of law.

II. The liability of an employer to pay expenses incurred by an employee for hospitalization, medical and surgical treatment is contingent on the failure of the former to provide it. If the employer has made adequate hospitalization and medical and surgical treatment available to the employee, he is not liable for other medical services secured by the latter.

III. Where the circumstances of employment made it necessary that the employee sleep on the employer's premises, and the contract between them contemplated he would do so, an injury to him caused by a fall, while asleep, from the bunk to which he had been assigned by his employer, occurred by accident arising out of and in the course of his employment.

Appellant, employed by respondents Robinson and Long Lake Lumber Company, to cut saw logs made claim for compensation for injury by accident arising out of and in the course of his employment. From an order by the Industrial Accident Board denying compensation he has appealed. Affirmed in part and reversed in part.

Reversed and remanded with direction. Costs awarded to appellant.

Clay V. Spear and J. Ward Arney, for Appellant.

An accidental injury sustained by an employee on the premises of his employer in quarters provided for and controlled by the employer, the use of which quarters is required either by contract or by the lack of other available accommodations, so the employee is given no choice in the selection thereof, is an injury deemed arising out of and in the course of his employment. (State Compensation Ins. Fund v. Industrial Com., 98 Colo. 563, 58 P. 759; Holt Lumber Co. v. Industrial Com., 168 Wis. 381, 170 N.W. 366; Landeen v. Toole County Ref. Co., 85 Mont. 41, 277 P. 615; Ocean Accident & Guarantee Corp. v. Pallaro, 66 Colo. 190, 180 P. 95; Larson v. Industrial Acc. Com., 193 Cal. 406, 224 P. 744.)

Injuries sustained by an employee upon the premises owned or controlled by his employer are generally deemed to have arisen out of, and in the course of, his employment. (Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; In re MacKenzie, 55 Idaho 663, 46 P.2d 73; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 74 P.2d 171.)

Nelson & Nelson, for Respondents.

An employee knowing of a hospital contract between the employer and the hospital and instructed to go to that hospital, may not hold the employer liable for medical care when he refuses to go to that hospital and incurs medical expenses by other physicians. (I. C. A., sec. 43-1107; Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979; Western Hospital Assn. v. Industrial Acc. Board, 51 Idaho 334, 6 P.2d 845; Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249.)

An employer being provided room and board by the employer for a charge of $ 1.30 per day and suffering an injury by falling from a standard steel bunk Sunday night, not having worked that day does not sustain an accident "arising out of and in the course of his employment." (American Mutual Liability Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (Dec. 8, 1938); Boyce v. Girton, 105 Ind.App. 687. 16 N.E.2d 976 (Oct. 21, 1938); Phillibin v. Hayes, 119 L. T. R. 133, 17 N. C. C. A. 947; Walker v. Hyde, 43 Idaho 625, 253 P. 1104.)

MORGAN, J. Ailshie, C. J., and Budge, Givens and Holden, JJ., concur.

OPINION

MORGAN, J.

The industrial accident board found, and the facts disclosed by the record justify the findings, that on and prior to October 2, 1938, Long Lake Lumber Company and F. D. Robinson were engaged in the business of lumbering in Bonner county and had secured payment of compensation to their employees by insuring with Northwest Indemnity Exchange; that for the purpose of carrying on their business the employers maintained a camp situated about twenty-five miles northwest of the city of Sandpoint; that for the convenience of their employees regular bunk houses and kitchen facilities were established; that within the bunk houses steel beds were placed, constructed in the usual manner in general use throughout that area, built in tiers of two single bunks, one above the other, called "lower and upper bunks"; that no other rooming accommodations were available within a radius of twenty or twenty-five miles; that employees accepting such facilities were charged $ 1.30 a day for board and lodging, the amount being deducted from such employees' pay; that appellant worked for his employers about two and a half days, cutting saw logs, at an agreed price per thousand feet; that men working on a piece basis were permitted, if they so desired, to work seven days a week; that on October second, because of rain, appellant was unable to work; that during the night of October second, appellant, while asleep in an upper bunk, fell to the floor thereby receiving an injury; that the employers, through one of their agents, received notice of the injury by accident the following morning; that appellant was told by said agent to get ready and someone would take him to Dr. Page at Sandpoint; that he was taken to Sandpoint and, arriving there, did not go to Dr. Page, but consulted another doctor who treated him and advised him to go home; that he went to his home in Coeur d' Alene and there received treatment from a physician residing in that city; that as a result of said injury, by accident, claimant was totally, temporarily disabled for work from and including October 3, 1938, until April 15, 1939, at which time his disability for work ceased; that by reason of said injury, by accident, appellant incurred expenses for medical treatment in the sum of $ 75, which was reasonable, and the treatment was necessary for the cure of his condition; that the lumber company and Robinson had entered into a hospital contract with Dr. Page, who was then conducting a hospital at Sandpoint, said contract providing for the care and treatment of all injuries and sickness to any of their employees; that appellant had not waived the provisions of Idaho Code Annotated, section 43-1108, or elected to receive the benefits of said contract in lieu thereof, but knew of said hospital contract; that appellant was an employee of said respondent employers and was earning an average of $ 30 per week.

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