In re Death of MacKenzie

• Decision Date: 28 May 1934
• Docket Number: 6095
• Citation: 33 P.2d 113,54 Idaho 481
• Parties: In the Matter of the Death of NIEL MACKENZIE. v. OREGON SHORT LINE RAILROAD COMPANY, Employer, Appellant JESSIE MACKENZIE, Respondent,
• Court: Idaho Supreme Court

33 P.2d 113

54 Idaho 481

In the Matter of the Death of NIEL MACKENZIE.

JESSIE MACKENZIE, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, Employer, Appellant

No. 6095

Supreme Court of Idaho

May 28, 1934

WORKMEN'S COMPENSATION ACT-INJURY ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT-INDUSTRIAL ACCIDENT BOARD-FINDINGS-EVIDENCE-VERBAL ADMISSIONS.

1. Verbal admissions should be received with caution.

2. Industrial Accident Board should decide value and credit to be given testimony in compensation proceeding.

3. Employee does not cease to be acting "in course of employment" even if temporarily departing from usual employment, if he does so to perform act necessary to be done by someone for master, or if he does what one might reasonably do while in performance of duty at time when he meets accident.

4. In proceeding for compensation for death of employee in accident claimed not to have arisen out of and in course of employment, Industrial Board held required to make specific finding respecting object or purpose of deceased employee in going to place where accident occurred, where evidence was sufficient to justify such finding.

5. Industrial Board's finding that employee met death by accident arising out of and in course of employment was but ultimate conclusion of both law and fact and insufficient where controlling specific fact as to employee's purpose in going to place where accident occurred was not found.

6. Where Industrial Board failed to make necessary findings cause will be remanded to board to make such findings, since board is fact-finding body and has duty to make necessary specific findings which are controlling when evidence justifies them.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Proceeding under Workmen's Compensation Law. Appeal from judgment of district court affirming order of Industrial Accident Board awarding compensation. Reversed and remanded with directions.

Reversed and remanded. Costs awarded to appellant.

Geo. H Smith and H. B. Thompson, for Appellant.

Where the thing the employee was doing at the time of his injury was not a thing he was employed to do, such injury did not arise out of and in the course of his employment, and the action will fail since both these propositions must be present in order to warrant recovery. (Walker v Hyde, 43 Idaho 625, 253 P. 1104.)

To constitute accident "arising out of and in course of employment" within compensation law, there must be probable, and not possible, connection between cause and effect. (Croy v. McFarland-Brown Lbr. Co., 51 Idaho 32, 1 P.2d 189; Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

Findings of fact before the Industrial Accident Board may not be based on incompetent evidence, and where there is no competent evidence upon which to base an award, it will be set aside. ( Jensen v. Wheeler & England, 51 Idaho 91, 1 P.2d 624.)

In reviewing hearings before the Industrial Accident Board upon the question as to whether the evidence submitted sustains the findings of the board, the courts will consider the competency, relevancy and materiality of the evidence according to the rules applicable to trials in courts. ( McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068.)

J. H. Peterson, Walter H. Anderson and Milton E. Zener, for Respondent.

It is not every slight deviation from an employee's duty that will deprive him or his dependents of the right to compensation. (Burchett v. Anaconda Copper Min. Co. et al., 48 Idaho 524, 283 P. 515, 518; Murdoch v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Zeier v. Boise Transfer Co., 43 Idaho 549, 254 P. 209, 210.)

Verbal admissions are received with caution and subject to scrutiny. (Ludberg v. Barghoorn, 73 Wash. 476, 131 P. 1165.)

Course of employment includes acts in which the employer has acquiesced, though they are not done in strict performance of employee's duties. An employee is not like a part of a machine operated by him, fixed to precisely the mechanical movement. He must perform to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside the course of his employment. (Zeier v. Boise Transfer Co., supra; Murdoch v. Humes & Swanstrom, supra.)

An injury arises in the course of employment when it takes place (a) within the period of employment; (b) at a place where employee may reasonably be; and (c) while he is reasonably fulfilling duties of employment or doing something incidental to it. (Murdoch v. Humes & Swanstrom, supra; Stakonis v. United Advertising Corp., 110 Conn. 384, 138 A. 334.)

WERNETTE, J. Budge, C. J., and Givens, J., concur, Holden, J., concurs in the conclusion. MORGAN, J., Dissenting.

OPINION

WERNETTE, J.

This proceeding was instituted by respondent, Jessie MacKenzie, to recover compensation for the death of her husband. On June 9, 1932, and for some years prior thereto Niel MacKenzie, deceased, had been employed by appellant, Oregon Short Line Railroad Company, in the operation of a generator plant in which acetylene gas was generated and conducted by pipes to the various shops of appellant company in its yards at Pocatello, Idaho. At the side of the generator plant building there was located a sump or sludge pit into which the refuse from the generators was carried by means of a concrete conduit from the inside of the building. For a period of about nine years, and up until November, 1931, it had always been a part of MacKenzie's duties to clean out the sludge pit at intervals of about one month, which cleaning work was done by running water and steam into the pit from the generator plant, and then siphoning the softened refuse into a car on a near-by track. The work of MacKenzie in operating the generator plant and cleaning the sludge pit was under the supervision of the mechanical department of the appellant company. In November, 1931, the store department of the appellant company was directed to take over the work of cleaning the sludge pit. From that time on, and until the date of the accident, June 9, 1932, it appears that a man from the store department always handled the work of cleaning the pit, under the supervision of the foreman of the store department. The hose that was used to run the water into the sludge pit, on the occasions when it was cleaned, was kept inside of the generating plant and the faucet controlling the flow of water was inside of the plant. It had been the custom of the man cleaning the pit after November, 1931, to have MacKenzie assist him in passing the hose out of the building to the pit, and then having MacKenzie turn the water on. On the day in question, June 9, 1932, MacKenzie had assisted the man who was doing the cleaning, but only in the particulars stated. When the store department assumed the task of cleaning the pit it changed the method used by discontinuing the use of the siphon and installing a pump. The first pump that had been used proved to be too small to handle the work satisfactorily, so shortly before the date of the accident a larger pump had been substituted to handle the work. On the day in question, after the man from the store department had started cleaning the pit, MacKenzie came out of the generator plant and talked with him a minute or two about how the pump was operating, glanced into the pit and returned to the inside of the building. Approximately an hour later the operator of the pump noticed that it was in need of oil and left the place for a period of about five minutes to go to the oil-house for some oil. While he was away MacKenzie came out of the building, passed the pump and stepped on to the back of one of the trap-doors turned back from the opening into the sludge pit. The back side of the open trap-door was covered with slime and, as a result, MacKenzie's feet slipped and he fell into the pit. The sludge had been thinned with water and heated by the steam, so that when MacKenzie fell into the pit and was submerged in the refuse and water he suffered a burn covering about eighty per cent of his body. On the same date, June 9, 1932, MacKenzie died as a result of the accident so sustained. The appellant refused to allow compensation, on the ground that the accident did not arise out of and in the course of deceased's employment. On hearing before the Industrial Accident Board that body allowed compensation, finding that the death of Niel MacKenzie "was the result of personal injuries by accident arising out of and in the course of his employment." On appeal to the district court the award of the board was affirmed, and the judgment affirming the award is now before us for review.

There is but one real question for decision in this case: Did the accident which caused the death of the deceased, Niel MacKenzie, arise out of and in the course of his employment?

Appellant has made various assignments of error, but the answer to this one question is decisive. Appellant takes the position that the deceased had been relieved of his duty of cleaning the sludge pit several months prior to the time that he met his death; that on the 9th day of June, when he slipped and fell into the pit, which caused his death, he was not performing any duty in connection with his employment, but came to the pit solely for the purpose of satisfying his own personal curiosity, and not while he was reasonably fulfilling the duties of his employment or something incidental to it. That portion of the findings of fact of the board, which are pertinent and material to a determination of the question before us,...