Fidelity & Casualty Co. v. Industrial Commission

• Decision Date: 01 March 1932
• Docket Number: 5211
• Citation: 79 Utah 189,8 P.2d 617
• Parties: FIDELITY & CASUALTY CO. et al. v. INDUSTRIAL COMMISSION et al
• Court: Utah Supreme Court

8 P.2d 617

79 Utah 189

FIDELITY & CASUALTY CO. et al. v. INDUSTRIAL COMMISSION et al

No. 5211

Supreme Court of Utah

March 1, 1932

Rehearing denied July 23, 1932.

Proceeding under the Workmen's Compensation Act by Mrs. Annie S Shufelt for the death of Edwin J. Shufelt, her son, claimant opposed by the Walgreen Company, employer, and the Fidelity &amp Casualty Company, insurance carrier. The Industrial Commission awarded compensation, and the insurer and employer bring original proceeding for review of such order.

REVERSED and remanded with directions.

Hurd & Hurd, of Salt Lake City, for plaintiffs.

Geo. P. Parker, Atty. Gen. and J. K. Smith, of Salt Lake City, for defendants.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This is a proceeding to review an order of the Industrial Commission of Utah whereby the commission awarded compensation to Annie S. Shufelt because of the death of her son Edwin J. Shufelt, also known as Edwin J. Cooper. Plaintiffs complain of the award because, as they claim, there is no evidence which supports or tends to support the commission's conclusion that the deceased was killed by reason of an accident arising out of or in the course of his employment. Plaintiffs also seek to have the award annulled because, as they contend, there is no evidence which supports the commission's finding that Annie S. Shufelt was dependent upon her son at the time he received the injury which resulted in his death. The evidence taken before the commission is not in conflict. The following facts are established by the evidence: At the time complained of the plaintiff Walgreen Company was subject to the Workmen's Compensation Act (Comp. Laws 1917, § 3061 et seq., as amended). It carried insurance with the plaintiff Fidelity & Casualty Company. At the time of his death Edwin J. Shufelt lacked about two months of being eighteen years of age. Prior to his death he resided with his mother at 1258 Sherman avenue, Salt Lake City, Utah. He was in the employ of Walgreen Company, which conducted a kodak plant at 63 South West Temple street in Salt Lake City, Utah. Edwin's duties required him to use a bicycle to make deliveries of kodak films. At the time he received the injury which resulted in his death and for some months prior thereto, he owned a bicycle and used it for the purpose of collecting and delivering films for his employer and for going to and from work. Edwin's duties required him to call each morning, except Sundays, at the Semloh Hotel at Second South and State streets and at the Union Pacific Depot at Third West and South Temple streets, and there pick up films and bring them to the plant of his employer. He was required to be at the company's plant at 8 o'clock a. m. He worked at the plant until about 4:30 p. m., when he was required to deliver kodak films to the patrons of his employer. On April 22, 1931, at about 7:30 a. m., Edwin, while riding his bicycle, collided with a street car at the intersection of Sherman avenue and Eleventh East streets, Salt Lake City, Utah, and as a result of such collision he received injuries from which he died a few hours after the accident. At the time of the accident he had with him a bag furnished by the Walgreen Company for the purpose of carrying films. The place where the fatal accident occurred is about three miles from the Semloh Hotel and about one and one-half blocks from where Edwin and his mother resided. At the time of his death and for some months prior thereto, Edwin was receiving a salary of $ 10 per week. His mother testified that he gave his money to her; that it cost about $ 3 per week to board him; that she gave him some money to spend; that he did not spend much money for clothing; and that he assisted about the house. Mrs. Shufelt further testified that her husband did not support her and that she worked out when she was able to get work. Gordon D. Peck testified that he was employed by the Walgreen Company as the manager of the Company's plant; that when Edwin was employed he was informed that his work would begin at the Bingham Stage Line office, which was in the Semloh Hotel at Second South and State streets. Mrs. Shufelt assigned her claim against the street car company to the plaintiffs in this proceeding. Upon substantially the foregoing testimony the commission awarded Mrs. Shufelt compensation at the rate of $ 5 per week for 312 weeks.

The commission found that at the time Edwin met with the fatal accident he was on his way to work. Plaintiffs complain of that finding. The fact that the accident occurred at 7:30 a. m., one-half hour before Edwin was due to report at the plant of the Walgreen Company, the fact that he had with him at the time of the accident the bag which he used to carry films, and the further fact that the accident occurred in a direct line between his home and the Semloh Hotel where he was required to call for the films, justify the inference that the deceased was on his way to work at the time he sustained the injuries which caused his death.

The troublesome question presented by this record is: Did the injuries which caused the death of Edwin J. Shufelt arise out of or in the course of his employment? It is a general rule of law that an injury sustained by an employee while going to or returning from his place of work upon his own initiative in a conveyance of his own choosing and on his own time is not an injury arising out of or in the course of his employment and hence an injury thus sustained is not compensable under Workmen's Compensation Acts. This court is committed to such doctrine. North Point Consol. Irr Co. v. Industrial Commission, 61 Utah 421, 214 P. 22; Greer v. Industrial Commission, 74 Utah 379, 279 P. 900; Denver & Rio Grande W. R. Co. v. Industrial Commission, 72 Utah 199, 269 P. 512, 62 A. L. R. 1436; Covey-Ballard Motor Co. v. Industrial Commission, 64 Utah 1, 227 P. 1028. There are some exceptions to the general rule. One of such exceptions is where an injury results because of a danger or peril incident to the use of a particular method or means of approach to the place of work. Cudahy Packing Co. v. Industrial Commission, 60 Utah 161, 207 P. 148, 28 A. L. R. 1394; Bountiful Brick Co. v. Industrial Commission, 68 Utah 600, 251 P. 555. It is clear that this case does not fall within that exception. Another exception to the general rule is where an employee while going to or from work...