Hansen v. Nw. Fuel Co.

• Decision Date: 07 November 1919
• Docket Number: No. 21433.,21433.
• Citation: 144 Minn. 105,174 N.W. 726
• Court: Minnesota Supreme Court
• Parties: HANSEN v. NORTHWESTERN FUEL CO.

144 Minn. 105

174 N.W. 726

HANSEN

v.NORTHWESTERN FUEL CO.

No. 21433.

Supreme Court of Minnesota.

Nov. 7, 1919.

Appeal from District Court, Ramsey County; Hugo O. Hanft, Judge.

Action by Aage F. Hansen against the Northwestern Fuel Company for damages for personal injury. Case dismissed as a common-law action, and retained for an award of compensation according to the Workmen's Compensation Act, and from an order denying his motion for a new trial, plaintiff appeals. Order affirmed.

Syllabus by the Court

The plaintiff was in the employ of a laundry company. He and the laundry company and the defendant were under the Compensation Act. He was injured at the noon hour while carrying a pack of laundry on his back from a hotel to the laundry by an auto truck of the defendant. He should have taken this laundry in the morning when out on his route with his wagon, but he forgot it. He brought this action against the defendant on its common-law liability. Under the Compensation Act an employé may bring a common-law action against the third party and recover to the extent which he would receive from his employer under the Compensation Act; and if he proceeds against his employer under the Compensation Act his employer is subrogated to his cause of action against the third party to the extent the employer has paid under the Compensation Act. At the close of the testimony the defendant moved that the case be dismissed as a common-law action and that the court award or deny compensation in accordance with the Compensation Act; and the court, being of the opinion that as a matter of law the injury to the plaintiff arose out of and in the course of his employment, granted the motion.

The injury to the plaintiff came from a street risk and as a matter of law arose out of his comployment.

The injury to the plaintiff as a matter of law arose in the course of his employment.

By the granting of the motion of the defendant to dismiss the case as a common-law action and to proceed as under the Compensation Act the defendant's liability to respond to the extent to which the laundry company was liable was determined, and there remained nothing to do except to fix compensation. Douglas, Kennedy & Kennedy, of St. Paul, for appellant.

John R. Ware, of Minneapolis, for respondent.

DIBELL, J.

Action to recover damages for personal injuries. The case was dismissed, as a common-law action, and retained for an award of compensation according to the terms of the Compensation Act. The plaintiff appeals from an order denying his motion for a new trial.

[1] 1. The plaintiff was in the employ of the Standard Laundry Company in St. Paul. He was run over by a truck of the defendant company. All three, the plaintiff, the defendant, and the laundry company, were under the Compensation Act.

The plaintiff brought this action to recover on the defendant's common-law liability. The answer alleged that all three were under the Compensation Act, and the fact was so.

The evidence established a prima facie case of common-law liability. The court was of the opinion that the plaintiff, as a matter of law, was within the Compensation Act, and that plaintiff's injury arose out of and in the course of his employment, within G. S. 1913, § 8195, and upon the motion of the defendant dismissed the action the action as a common-law action and retained it for an award of the compensation fixed by the Workmen's Compensation Act.

The plaintiff was a laundry driver. He had a down town route. He used a horse and wagon gathering laundry from the different hotels in the morning and returning it in the evening. He usually commenced work about 6, stabled his horse at noon in a barn near the laundry, and commenced work again at 1:30 in the afternoon. On the day of his injury he worked in the forenoon and stabled his horse at the usual time. After lunch he was about town when he remembered that he had not collected laundry from the Brinsmead Hotel as he should have done. It should have been taken at 11 and should have been at the laundry at 12. It was to be returned at 5. He immediately went to the hotel, which was but a short distance away, took the bag of laundry on his back, and started for the laundry some six blocks distant. On the way he was injured by the auto truck.

[2] 2. The court was right in holding, as a matter of law, that the injury to the plaintiff arose out of his employment. It was a street risk to which his work subjected him. This should be understood to be settled law in this state as it is generally in other states. Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913,159 N. W. 565, and cases cited; Kunze v. Detroit, etc., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252;Burton Auto Transfer Co. v. Ind. Acc. Com'r (Cal. App.) 174 Pac. 72;Keaney's Case, 232 Mass. 532, 122 N. E. 739;Globe Ins. Co. v. Ind. Acc. Com., 36 Cal. App. 280, 171 Pac. 1088;Consumer's Co. v. Ceislik (Ind. App.) 121 N. E. 832;Bachman v. Waterman (Ind. App.) 121 N. E. 8. It is now the definitely settled law in England. Dennis v. A. J. White & Co. [1917] App. Cas. 479; Arkell v. Gudgeon, 118 L. T. R. 258.

[3] 3. The injury arose in the course of the employment of the plaintiff. It is true that he was not using his delivery wagon and that it was not customary to carry laundry as he was doing at the time; but he was working in furtherance of his employer's interest. The laundry was received by the laundry company after the accident and laundered. He did not step aside from his work for some purpose of his own but was actually furthering the business of the company. It had never told him to do or...