In re Death of Mackenzie, 6233

• Decision Date: 08 June 1935
• Docket Number: 6233
• Citation: 46 P.2d 73,55 Idaho 663
• 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

46 P.2d 73

55 Idaho 663

In the Matter of the Death of NIEL MACKENZIE.

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

No. 6233

Supreme Court of Idaho

June 8, 1935

WORKMEN'S COMPENSATION LAW-COMPENSABLE INJURY ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT.

1. Appeal from judgment of district court affirming award of Industrial Accident Board held not dismissible because on prior appeal in same case Supreme Court directed Industrial Board to make specific findings, and hence that board was in effect carrying out mandate of Supreme Court and any appeal therefrom would be duplicitous, since judgment affirming new award was same as if entered upon a new trial, and hence appeal was from new award (I. C. A., sec. 43-901 et seq.).

2. Evidence held to sustain Industrial Accident Board's findings that deceased employee left generator building wherein he was employed to see how work of cleaning sump was getting on and for purpose of ascertaining what was best thing to do with pump which lacked oil, and that employee did so with intent to advance work of emptying sump and thus to further interests of his master and not to satisfy idle curiosity (I. C. A., sec. 43-901 et seq.).

3. Injuries sustained by employee upon premises owned or controlled by employer are generally deemed to have "arisen out of and in course of employment" (I. C A., sec. 43-901 et seq.).

4. Industrial Accident Board's findings that deceased employee left generator building wherein he was employed to see how work of cleaning sump was getting on and for purpose of ascertaining what was best thing to do with pump which lacked oil, and that he did so with intent to advance work of emptying sump and thus to further interests of his master and not to satisfy idle curiosity, held to sustain award of compensation to employee's widow (I. C. A., sec. 43-901 et seq.).

5. Trial court's alleged error in refusing to pass upon sufficiency of evidence to sustain Industrial Accident Board's specific findings, or to pass upon sufficiency of findings to support award, held harmless, in view of Supreme Court's conclusion that evidence was sufficient to sustain specific findings and that findings were sufficient to support award (I. C. A., sec. 5-907).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Proceeding under Workmen's Compensation Law. Appeal from judgment of district court, affirming order of Industrial Accident Board awarding compensation. Affirmed.

Judgment affirmed, with costs to respondent.

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

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; Larsen v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

Walter H. Anderson and Gus Carr Anderson, for Respondent.

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., 43 Idaho 549, 254 P. 209; Murdoch v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472; In re Stewart, 49 Idaho 557, 290 P. 209.)

HOLDEN, J. Givens, C. J., and Morgan, J., concur, BUDGE, J., Specially Concurring. Ailshie, J., did not participate in the decision.

OPINION

HOLDEN, J.

This is a proceeding by respondent to recover compensation for the death of her husband, Niel MacKenzie, under the Workmen's Compensation Act, and is now before this court on a second appeal.

The matter was first heard before the State Industrial Accident Board, which board found in favor of and made an award to respondent, December 28, 1932. An appeal was taken to the district court, and from a judgment of that court, affirming the award of the Accident Board, the first appeal was taken. (In re MacKenzie, 54 Idaho 481, 33 P.2d 113.)

Upon that appeal, this court held that there was but one real question for decision, i. e.: "Did the accident which caused the death of deceased Niel MacKenzie arise out of and in the course of his employment?" And concluded that the findings of the Accident Board upon that question were insufficient to support the award, and reversed the judgment and remanded the cause with directions to the board to make specific findings.

In compliance with the order of this court, the board thereafter, July 25, 1934, made specific findings and a new award. From such findings and new award, a second appeal was prosecuted to the District Court, which court, January 4, 1935, affirmed the award of the board, and the matter is again before this court upon appeal from said last-mentioned judgment of the District Court.

Respondent has moved to dismiss the present appeal on the ground that the order of the court was final, and that the board, by its order, was merely carrying out the mandate of this court, and that the board order was, in effect, an order of this court, and that any appeal therefrom would be duplicitous and unauthorized.

In effect, the contention of respondent is that since appellant has had one appeal from the award, based upon the identical evidence here presented, a second appeal will not lie.

The award made by the Industrial Accident Board, July 25, 1934, after the case was reversed and remanded, which was later affirmed by the District Court, is an entirely new award. When the judgment was reversed on the first appeal, the case was remanded in all respects the same as if for a new trial, but instead of ordering and directing that the evidence be again produced before the Industrial Accident Board this court directed that the board make specific findings, based upon the evidence previously introduced in the case.

The judgment of the District Court, affirming the new award, stands, therefore, to all intents and purposes, the same as if entered upon a new trial, and this is the first and only appeal taken from that particular judgment. (Later v. Haywood, 15 Idaho 716, 99 P. 828. See, also, People's Gaslight & Coke Co. v. City of Chicago, 309 Ill. 40, 139 N.E. 867.)

An appeal, therefore, from the judgment of the District Court, affirming the new award of the Industrial Accident Board, will lie, and the motion to dismiss is denied.

Pursuant to directions of this court to make specific findings upon the single question which this court held, upon the former appeal, to be decisive, the Industrial Accident Board found:

"That when the said Niel MacKenzie, now deceased, came out of the generator building as above described, at the time the laborer in charge of the job of emptying the sump was away to get oil for the pump, he, the said MacKenzie, went toward or by the running pump which was then jumping and jerking, and stepped on the trap door to see how the work was getting on--that is to say--to see whether it was because the sludge in the sump was nearing the bottom that caused the pump to jump and jerk; that he did this with the intention to advance the work of emptying the sump; that on several occasions since the emptying of the sump had been taken over by the 'Store Department' the said Niel MacKenzie, now deceased, had helped in that work; that said Niel MacKenzie, now deceased, had done so to further the work of his master; and it is hereby and now specifically found that the said Niel MacKenzie stepped on the said open slimy trap door for the purpose of ascertaining what was the best thing to do in and about the situation then present and to do such best thing in, and to further, the interests of his master and not to satisfy his idle curiosity."

The errors assigned by appellant on this appeal present three questions for determination:

(1) The sufficiency of the evidence to support the findings.

(2) The sufficiency of the findings to sustain the new award; and

(3) The refusal of the trial court to pass upon the sufficiency of the evidence to sustain the findings, and the refusal of the court to pass upon the sufficiency of the findings to sustain the new award.

Upon the first question, the record shows: That appellant owned a generator plant; that this plant was located in appellant's yards at Pocatello, Idaho; that it was used to generate acetylene gas; that the gas was piped to appellant's various shops, also located in its said yards; that for several years, and up until November, 1931 Niel MacKenzie had been employed by appellant to operate the plant; that at the side of the building, housing the plant, there was a sump, located four feet from the building, into which the refuse from the generators was carried by means of a concrete conduit, and that until November, 1931, it was also MacKenzie's duty to, and he did, without any assistance, regularly clean out the sump; that the cleaning was done by running water and steam into the sump from the generator plant, and siphoning the softened refuse into a car on a near-by track; that MacKenzie, until the date of his death, was employed in the Mechanical Department of the appellant; that in November, 1931, supervision of the work of...