Kennedy v. Thompson Lumber Co.
| Decision Date | 20 March 1947 |
| Docket Number | No. 34236.,34236. |
| Court | Minnesota Supreme Court |
| Parties | KENNEDY v. THOMPSON LUMBER CO. et al. |
OPINION TEXT STARTS HERE
Certiorari to Industrial Commission.
Proceeding under the Workmen's Compensation Act on the claim of Joseph Kennedy, employee, for compensation, opposed by Thompson Lumber Company, employer. To review an order of the Industrial Commission denying the claim, claimant brings certiorari.
Reversed.
Syllabus by the Court.
1. Evidence Held to establish that injury sustained by an employe, acting in his capacity as shop steward of a union, while crossing a public street for the purpose of reaching a telephone on property not owned or controlled by his employer to telephone the business agent of the union in order to avert a threatened work stoppage, was one arising out of and in the course of his employment where it appeared that such call would have been in the interest of both employer and employes.
2. Since findings of fact are the authority for and constitute the basis for a decision, there should be a sufficient statement of the facts to form a basis for the conclusions of law. Evidence Held to establish that decision of industrial commission was not warranted by the findings.
3. Review of record discloses conclusive evidence justifying remand of cause to industrial commission with directions to make findings in accordance with the opinion of this court.
Robins, Davis & Lyons and Stanley B. Korengold, all of Minneapolis, for relator.
R. G. Shepley, of Minneapolis, for respondents.
Certiorari to review an order of the industrial commission denying the claim of Joseph Kennedy for compensation under the Workmen's Compensation Act, Minn.St.1945 and M.S.A. s 176.01 et seq.
On March 9, 1945, and prior thereto, Kennedy was employed as a ripsaw operator in the box factory at the Calhoun yards of the Thompson Lumber Company in Minneapolis. He was a member of Cabinetmakers' and Millmen's Union, Local 1865, and had been selected by his fellow workers in the union to act as ‘shop steward.’ In that capacity, he was charged with the duty of negotiating grievances arising between the employes and the employer. During the period immediately preceding March 9, unsuccessful efforts had been made to settle a dispute between the employes in the box factory and the management, and on that date the situation was such that in the opinion of Kennedy and others a work stoppage or strike was imminent. Kennedy was injured during the morning of March 9. His petition, directed to the industrial commission, was based on the claim that he was injured while attempting to avert this work stoppage and that the injury was therefore one arising out of and in the course of his employment.
The matter was heard before a referee, who found that ‘petitioner suffered an accidental injury to his left leg, but that said accident did not arise out of or during the course of said employment.’ Although the commission affirmed the findings and conclusions of the referee, it did, upon petition for rehearing, modify the above finding, which in its entirety reads as follows:
‘That on said date said petitioner suffered an accidental injury to his leg; that at the time of said accidental injury the employe, acting in his capacity as shop steward of the employes' union, was crossing a public street for the purpose of reaching a telephone located on property not owned or controlled by the employer, for the purpose of telephoning to the business agent of the union; that said accident or injury did not arise out of or during the course of the employment of the employe by the employer, Thompson Lumber Company.’
Pursuant to an agreement between the parties, the testimony was confined to the question of liability, and the taking of medical testimony was deferred.
In reviewing the decision of the industrial commission, we have these issues for determination:
(1) Does the amended finding of fact sustain the conclusion that the injury was not compensable?
(2) Does the record contain evidence of such a nature as to require this court to direct findings favorable to the employe?
A decision should contain a sufficient statement of the facts to form a basis for the conclusions of law. 6 Dunnell, Dig. & Supp. s 9848. The question here is whether it can be said that the employe is barred from recovery because at the time of his injury he was ‘acting in his capacity as shop steward of the employes' union, was crossing a public street for the purpose of reaching a telephone located on property not owned or controlled by the employer, for the purpose of telephoning to the business agent of the union.’
The mere fact that at the time of the injury the employe was crossing a public street does not bar him from the benefits of the act. Although Minn.St.1945, and M.S.A. s 176.01, subd. 11, provides that workmen are not covered ‘except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service, at the time of the injury, and during the hours of service as such workmen,‘ the limitation has been liberally construed. This court is committed to the doctrine that an injury from a so-called street risk in the course of employment, i.e., when the employe is on his job or at his work, is one arising out of his employment. Hansen v. Northwestern Fuel Co., 144 Minn. 105, 174 N.W. 726;Johnston v. W.S. Nott Co. 183 Minn. 309, 236 N.W. 466. In the Hansen case, this court said (144 Minn. at page 107, 174 N.W. at page 727):
And in the Johnston case, this court stated (183 Minn. at page 313, 236 N.W. at page 468):
‘* * * Injuries resulting from slipping on streets while in the course of their employment are taken by the courts generally as arising out of the employment the same as a street accident through contact with traffic or other cause.’
In Le Bar v. Ewald Bros. Dairy, 217 Minn. 16, 13 N.W.2d 729, there was an award to the employe for an injury sustained while playing softball on the Parade Ground, a public park in the city of Minneapolis, although, strictly speaking, the place of his employment was the dairy operated by his employer. In Corcoran v. Teamsters and Chauffeurs Joint Council No. 32, 209 Minn. 289, 297 N.W. 4, there was an award to the employe's widow where the employe, after his return from a labor union meeting which he had attended in his capacity as a labor union organizer, was found dead from a gunshot wound 80 feet from the garage of his home. In Kiley v. Sward-Kemp Drug Co., 214 Minn. 548, 9 N.W.2d 237, the accident for which compensation was awarded occurred while the employe was returning from a visit with friends which was incidental to a trip on behalf of her employer. All these cases indicate that where the accident arises out of and in the course of the employment this court will not insist that the employe establish as a condition precedent to recovery that the accident occurred on premises controlled by the employer.
Whether the accident here involved is compensable depends on facts which do not appear in the findings of the industrial commission. If at the time of the injury the employe was about to make a telephone call which would have advanced the interests of his employer in its relations with its employes, the case might be covered by the act. In fact, this was admitted by counsel for the employer in his oral argument when he said in effect that if the...
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