Kary v. N.D. Workmen's Comp. Bureau

• Decision Date: 20 March 1937
• Docket Number: No. 6462.,6462.
• Citation: 67 N.D. 334,272 N.W. 340
• Parties: KARY v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

67 N.D. 334

272 N.W. 340

KARY

v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 6462.

Supreme Court of North Dakota.

March 20, 1937.

Syllabus by the Court.

1. The only injury for which an employee may recover compensation from the Workmen's Compensation Bureau under the Workmen's Compensation Act is one “arising in the course of employment” (section 396a2 of the Supplement).

2. Plaintiff was employed by the county in grading and improving a highway, and furnished horses and his own labor in driving a grader. After his work had ceased, and at some distance from his field of labor, he was injured while en route home on the public highway. Held, plaintiff is not entitled to compensation from defendant for such injury as the injury did not arise “in the course of employment.”

Appeal from District Court, Morton County; H. L. Berry, Judge.

Proceeding under the Workmen's Compensation Act by Anton J. Kary, claimant, opposed by the North Dakota Workmen's Compensation Bureau. Judgment for plaintiff, and defendant appeals.

Reversed, and action dismissed.

P. O. Sathre, Atty. Gen., and Milton K. Higgins, Asst. Atty. Gen., for appellant.

Thos. J. Burke, of Bismarck, for respondent.

BURR, Judge.

The plaintiff, a farmer, was employed by the county of Morton in 1935 on Project No. 88 under the Federal Emergency Relief Administration, the employees being protected by workmen's compensation. When called upon, he furnished his own labor and horse power to operate a fresno, driving to his work in a wagon. His hours were from 8 a. m. until 5 p. m., beginning with his arrival at the job and ceasing when the work stopped, with lunch hour off. His pay was 40 cents an hour for his own work and 50 cents an hour for the horses.

Plaintiff worked under the supervision and direction of a foreman, and because of a superfluity of labor, the foreman told him when to come to work. Plaintiff selected the horses himself and worked them himself. He furnished the feed and stable room, the same as he did on his farm.

On March 21 he lived about three miles from where the work was being done. When the work ceased, he started home. While on the public highway-the direct road to his home-and about a quarter of a mile from the place of employment, he was injured by being thrown from the wagon through sudden action of the horses.

The bureau denied compensation and the matter was litigated in the district court. Judgment was rendered in favor of the plaintiff, and the defendant appeals.

Appellant says: “The sole issue is whether * * * the claimant * * * was injured in the course of his employment * * *.”

[1] Our statute, section 396a2 of the Supplement, says this term “‘injury’ means only an injury arising in the course of employment.”

There is significance in the use of the word “only,” and clearly the Legislature had a purpose in its use. Coming to work, returning from work, leaving the place of employment for lunch intending to return immediately thereafter, are acts incidental to the employment and having a causal connection therewith, even after the actual work has ceased. Clearly the Legislature intended to eliminate such as it limits the injuries to those which arise in the course of employment.

[2] There is a distinction between injuries which grow “out of employment” and injuries sustained “in the course of employment.” Stakonis v. United Advertising Corp. et al., 110 Conn. 384, 148 A. 334, 336;Irwin-Neisler & Co. v. Industrial Comm. et al., 346 Ill. 89, 178 N.E. 357, 358;In re Employers' Liability Assur. Corp., 215 Mass. 497, 102 N.E. 697, L.R.A. 1616A, 306;Goodwin et al. v. Bright et al., 202 N.C. 481, 163 S.E. 576;Harden et al. v. Thomasville Furniture Co. et al., 199 N.C. 733, 155 S.E. 728.

When employee's hours of labor have ended, the daily work for which he is paid done, and he has left the place of employment, a subsequent accident is not “in the course of employment.” This phrase refers to time, place, and circumstances under which the accident occurs. Herald Printing & Stationery Co. v. Industrial Commission et al., 345 Ill. 25, 177 N.E. 701;Enfield v. Certain-Teed Products Co. et al., 211 Iowa, 1004, 233 N.W. 141;Sullivan's Case, 128 Me. 353, 147 A. 431;Larsen v. State Industrial Accident Comm., 135 Or. 137, 295 P. 195;Wynn et al. v. Southern Surety Co. (Tex.Civ.App.) 26 S.W.(2d) 691.

But “course” may cover all the period between entering the premises and leaving the gates. Butler's Case, 128 Me. 47, 145 A. 394;Roxana Petroleum Corp. et al. v. State Industrial Comm. et al., 134 Okl. 181, 272 P. 847;Petroleum Casualty Co. v. Green (Tex.Civ.App.) 11 S.W.(2d) 388.

Time is the period of employment; place, the designated location of the work; and work is such as the employee may reasonably do in connection with the purpose of his employment or incidental thereto. Ryerson v. A. E. Bounty Co. et al., 107 Conn. 370, 140 A. 728;Stakonis v. United Advertising Corp. et al., 110 Conn. 384, 148 A. 334;Union Starch and Ref. Co. v. Industrial Comm. et al., 344 Ill. 77, 176 N.E. 303;Great Atlantic & Pacific Tea Co. v. Industrial Comm. et al., 347 Ill. 596, 180 N.E. 460, 83 A.L.R. 1208;Metting et ux. v. Lehr Const. Co., 225 Mo.App. 1152, 32 S.W.(2d) 121;Wahlig v. Krenning-Schlapp Grocer Co et al., 325 Mo. 677, 29 S.W.(2d) 128;Conrad v. Cook-Lewis Foundry Co. et al., 198 N.C. 723, 153 S.E. 266;Hama Hama Logging Co. v. Dept. of Labor and Industries, 157 Wash. 96, 288 P. 655. “Arising in the course of employment” has reference to the time of service, the hours of employment; “arising out of the employment” is determined by the relation to the master's business in which the employee works; while “arising out of and in the course of employment” requires a combination of both. Statutes differ in language and this difference affects the authoritative value of decisions.

An injury occurring “within the period of his employment, at a place where he might reasonably be, and while he was reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it,” perforce arises out of the employment; but the range of injuries in the latter class is greater. “An injury arises out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or the conditions under which it is carried on. Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment.” Marchiatello v. Lynch Realty Co., 94 Conn. 260, 263, 108 A. 799, 800. See, also, Harivel v. Hall-Thompson Co. et al., 98 Conn. 753, 120 A. 603.

Plaintiff cites Speas v. Boone County, 119 Neb. 58, 227 N.W. 87, 318, and Green v. County of Chippewa et al., 189 Minn. 627, 250 N.W. 679. In each of these cases the plaintiff was a maintenance man on the highways of the county, and the statutes involved prescribed compensation for injuries “arising out of and in the course of employment.” In each case, differing from the one at bar, the injury arose during the hours of the day's employment-the noon hour. In the Nebraska case, though there was a strong dissenting opinion (227 N.W. 318), the court held there was such causal connection between the acts being performed at the time he was injured, namely, the unhitching of the team and feeding and watering preparatory to continuing his work in the day, and the nature and contemplation of his employment that it could be said also that the injury arose out of his employment.

In the Minnesota case the facts are quite similar to those of the Nebraska case; in fact, the Minnesota court cites the Nebraska decision as authority. In the Minnesota case the court held that as this accident happened during the part of the day in which he was employed and, on what the court holds was, by extension, the premises of the employer, and as the workman was to continue his work in the afternoon, the injury received arose out of and in the course of employment.

The Minnesota court differentiates the case...