In re Death of Christie

• Decision Date: 27 June 1938
• Docket Number: 6456
• Citation: 81 P.2d 65,59 Idaho 58
• Parties: In the Matter of the Death of RALPH CHRISTIE. v. ROBINSON CONSTRUCTION COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents SADIE CHRISTIE, as the Dependent Mother, and ELMER CHRISTIE, as the Dependent Brother of RALPH CHRISTIE, Deceased, Appellants,
• Court: Idaho Supreme Court

81 P.2d 65

59 Idaho 58

In the Matter of the Death of RALPH CHRISTIE.

SADIE CHRISTIE, as the Dependent Mother, and ELMER CHRISTIE, as the Dependent Brother of RALPH CHRISTIE, Deceased, Appellants, v. ROBINSON CONSTRUCTION COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 6456

Supreme Court of Idaho

June 27, 1938

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

1. If work of employee creates necessity for travel, he is in "course of employment" while so traveling though he is serving at the same time some purpose of his own, but if work has no part in creating necessity for travel and the journey would have gone forward though the business errand had been dropped and would have been canceled on failure of private purpose, though business errand was undone, the travel as well as the risk is then personal. (I. C. A., sec 43-901 et seq.)

2. Where evidence showed that caterpillar tractor operator and repair man was making hurried trip to city to get needed parts for caterpillar under authority and instructions from superintendent to get parts required and that employee was to be compensated for getting parts, and showing that employee would not have made the trip had it not been for the necessity of obtaining the parts and that employee was killed in accident returning from city, finding that employee was not injured in "course of employ- ment" so as to justify denial of claims for compensation was error. (I. C. A., sec. 43-901 et seq.)

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Chas. F. Koelsch, Judge.

Proceeding under Workmen's Compensation Law. From judgment affirming order of Industrial Accident Board, denying claims and dismissing applications, plaintiffs appeal. Reversed and cause remanded with instructions.

Judgment affirmed in part, reversed in part and cause remanded with direction. Costs awarded to appellant, Sadie Christie.

J. W. Galloway and E. B. Smith, for Appellants.

Where an employee is in the performance of some substantial mission for his employer growing out of the employment, and such a mission is shown to be the major factor in the employee's movement and not merely incidental thereto, an accidental personal injury sustained by the workman during the performance of such mission arises out of and in the course of his employment. (Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417; Irwin-Neisler & Co. v. Industrial Com., 346 Ill. 89, 178 N.E. 357.)

Where there is no substantial conflict in the evidence such as to warrant a holding that the findings of the board and of the court must be upheld and, where the preponderance of the evidence is against the findings and the decision, there being no substantial evidence to support them, the judgment denying an award should be reversed. (Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; In re Larson, 48 Idaho 136, 279 P. 1087; In re Hillhouse, 46 Idaho 730, 271 P. 459; Jenkins v. Boise Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Soran v. McKelvey, 57 Idaho 483, 67 P.2d 906; Pierstorff v. Grays Auto Shop, 58 Idaho 438, 74 P.2d 171.)

Carroll F. Zapp, for Respondents.

The findings of the Industrial Accident Board are conclusive and will not be disturbed if there is sufficient competent evidence to support them; neither will the findings of the board on conflicting evidence be disturbed on appeal where there is competent evidence to support them. (Sec. 43 1408, I. C. A.; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Reader v. Milwaukee Lbr. Co., 47 Idaho 380, 275 P. 1114; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189.)

Where an employee is injured on an errand, the mission for the employer must be the major factor in the journey, in order to bring him within the course of his employment and entitle him to compensation for his injuries. (Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Barrager v. Industrial Com., 205 Wis. 550, 238 N.W. 368, 78 A. L. R. 679; Continental Casualty Co. v. Industrial Acc. Com., 47 Cal.App. 387, 190 P. 849, 78 A. L. R. 684.)

AILSHIE, J. Budge and Givens, JJ., concur. Holden, C. J., did not sit at the hearing or participate in the decision in this case. Morgan, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

AILSHIE, J.

During the summer of 1935 Ralph Christie, a single man, 21 years of age, was employed by the Robinson Construction Company, one of the respondents, as operator of a gasoline tractor, known as a "caterpillar." He was also the repair man for the "cats" (so-called in common parlance). The company was engaged in constructing roads in Valley county and elsewhere in the state. Ralph resided at McCall with his mother and younger brother. His wages were $ 4.80 per day (working seven days each week) which he usually turned over to his mother to pay for household expenses, etc.

Appellant and her son, Ralph, had planned to attend a high school play at McCall on Saturday evening, October 26, 1935. Ralph went to the timekeeper's office to draw $ 5, to pay their "fees" for the play. When he returned home about a half hour later, he informed his mother that he couldn't go to the play with her; that he had "to go to Boise after Harry" and "to purchase some repairs for the cat." Harry Totten, also a caterpillar operator, was Ralph's half-brother. "He had been recommended as a very good man" and was asked by the superintendent to "come over and go to work." Dewey Hindman, patrol operator for the construction company, received a telephone call from Totten, requesting Hindman to come to Boise after him. Hindman drew $ 5 from Vic Milward, the timekeeper, for expense of trip, and while in the latter's office he overheard a conversation between Vic and Ralph in relation to the latter going to Boise and getting certain parts for the caterpillar.

Ralph and Hindman left McCall about 10 o'clock P. M. and stopped at the rock crushing plant in Lake Port, where Ralph told Dailey, the superintendent of the construction company, that he was going to Boise and "would get the bearing for the cat" if he wished him to. Dailey said he would appreciate that and would allow him for his time spent in Boise for the company. Hindman and Christie arrived in Boise between two and 3 o'clock Sunday morning, October 27th. They found Totten and tried to locate some of the employees of the Bunting Tractor Company to get the repair parts. All during that day Christie endeavored to find some one of the employees of the company, by either calling at the company's office or personally calling at their residences, or trying to reach them by telephone. About 7 o'clock Sunday evening, Totten, Hindman and Christie started on their return trip to McCall; Hindman drove as far as Horseshoe Bend and "Ralph took the wheel then." About six or seven miles from the latter place they passed a car and "quite a ways behind there was another one with their bright lights on." The traffic was "awful heavy." Ralph was driving the car over on the right side of the road, as shown by the investigation afterward. "A little ton and a half Diamond 'T' truck carrying an Illinois license" struck the left cowl light of the Hindman car, causing the car to cross over and hit the left back slope of the road and rolling the car on its side. They landed 144 feet from where the car first hit. Ralph sustained a personal injury from which his death occurred about fifty minutes later.

Claim for compensation was made by the mother and brother of deceased, and a claim was also filed by the state for $ 1,000. Hearing before the industrial accident board resulted in the board's denying the claims and dismissing the applications. From an order of the district court, affirming the board's order and decision, this appeal is taken.

It is contended by appellants and denied by respondents that the accident, which resulted in the death of Ralph Christie, arose out of and in the course of his employment by respondent construction company.

Since this case turns entirely upon the sufficiency of the evidence to support the award of the board, we are setting forth herein the entire evidence contained in the record bearing on the cause of the decedent making the trip from McCall to Boise, the real purpose or purposes of the trip, and the circumstances which induced him to make the trip; and what he did from the time he left McCall until he met with the accident on his return trip. The respective witnesses testified substantially as follows:

Sadie Christie, mother of decedent, told of the plan of Ralph and herself to go to the high school play Saturday evening; that he went down to the construction company's office to draw $ 5 to pay their "fees into the doings"; of Ralph's return home in not "quite a half hour";

"Q. Will you state the conversation had between you and Ralph as near as you can relate it?

"A. He said to me, 'Mamma, I can't go to the play' and I asked him 'why' and he said 'I have got to go to Boise after Harry and I have got to purchase some repairs for the cat'--that is the caterpillar and they call it the cat. I asked him why he had to go. He said the bookkeeper over there or the superintendent says I have got to get parts for the cat.

"Mr. LANGLEY: Q. Who is the bookkeeper or superintendent you refer to?

"A. High Dailey. He said he had to have parts for the cat and Harry, his half brother to come back Monday morning to go to work on one of the shifts on the cat. He says 'I will be back Sunday morning.' "

Elmer Christie, decedent's brother, testified that he "asked Vic [timekeeper for respondent] if Ralph went down of his own accord after this caterpillar part just to be going or if they had sent him and Vic said...