Hill v. Department of Labor and Industries

• Decision Date: 24 July 1933
• Docket Number: 24292.
• Citation: 173 Wash. 575,24 P.2d 95
• Parties: HILL v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

24 P.2d 95

173 Wash. 575

HILL v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 24292.

Supreme Court of Washington

July 24, 1933

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Proceedings under the Workmen's Compensation Act by Mitchell K. Hill employee. From a judgment of the superior court reversing an order of the Department of Labor and Industries rejecting the claim, the Department of Labor and Industries appeals.

Judgment reversed, with directions.

G. W Hamilton, Atty. Gen., and John H. Dunbar, Harry Ellsworth Foster, and Granville Egan, all of Olympia, for appellant.

Berkey & Cowan, of Spokane, for respondent.

BEALS Chief Justice.

Plaintiff in this action, who was in the employ of Spokane United Railways Company as a street car operator, at 4:58 o'clock on the morning of February 20, 1931, took his car from the barn and proceeded upon his regular schedule. Passing the post office, plaintiff left his car for the purpose of depositing a letter in the public mail box in front of the building. While crossing the street on his return to his car, plaintiff was struck and severely injured by an automobile. Plaintiff thereafter filed his claim with the Department of Labor and Industries, the joint board rejecting the same on the ground that plaintiff at the time of his injury, was not acting within the course of his employment. From this ruling plaintiff appealed to the superior court, which reversed the decision of the joint board and referred the case back to the department by an order which directed that plaintiff's claim be allowed in the sum of $345.20. From this judgment the department has appealed to this court.

The case is presented here upon the findings of fact made by the trial court. Appellant assigns error upon one finding of fact--that stating the extent of the injuries suffered by respondent, upon the entry of the conclusions of law and upon the rendition of judgment in favor of respondent.

Respondent moves to dismiss this appeal upon the ground that appellant did not seasonably cause a transcript to be filed in this court, and for the further reason that appellant's opening brief was filed after the expiration of the time prescribed by law. The jurisdictional steps necessary to a review of the judgment herein by this court were seasonably taken by appellant. The delay in filing the transcript and appellant's opening brief was not so great as to call for the dismissal of the appeal, and respondent's motion is accordingly denied.

Appellant argues that it appears from the findings that respondent, at the time he was hurt, was not in the course of his employment, and that for this reason he is not entitled to relief from the fund in appellant's custody.

In the case of Hama Hama Logging Co. v. Department of Labor and Industries, 157 Wash. 96, 288 P. 655, 658, this court, sitting en banc, said: 'It follows that an employee, injured at a time when he is doing something solely for his own benefit or accommodation and not while engaged in or furthering his employer's business, is not injured 'in the course of his employment.''

In the earlier case of Hoffman v. Hansen, 118 Wash. 73, 203 P. 53, 55, it was held that a motorman in the employ of the municipal street railway of the city of Seattle who, after registering at the proper office for his day's employment, strolled along the street while waiting for the time to take out his car, and while so engaged was struck by an automobile and injured, was not when hurt within the course of his employment and was not therefore limited in his claim for compensation to his remedy under the Workmen's Compensation Act. In discussing the question of whether or not the injured employee was limited to his rights under the Workmen's Compensation Act, this court said: 'Situated and engaged as he was at the time of the accident, it cannot be said, upon a liberal construction of the act, that he was upon the premises or at the plant of his employer. He was upon the sidewalk and street in a sense entirely disassociated from the street railroad and its service. Nor can it be said that while thus away from the plant of his employer he was in the course of his employment. At the time he was injured he was engaged in the exercise or pastime of walking and was no more in the course of his employment than if at that time he had been away engaged in the exercise or pastime of boating or automobiling. The complaint being that his injuries were due to the negligence or wrong of another who it appears was not in the same employ, and it appearing he was injured at a time he was not in the course of his employment and was away from the plant of his employer, it follows that the provisions of the act requiring him to elect whether to take under the act or seek a remedy against such other and that such election shall be in advance of any suit under this section is not applicable.'

In the case cited the question presented was the right of the injured workman to sue the persons responsible for his injuries, but the logic of the opinion is applicable to the case at bar.

This case is clearly to be distinguished from cases in which a person within the protection of the act temporarily leaves the place of his employment for the purpose of performing some act of necessity or...