King v. State Indus. Acc. Commission

• Decision Date: 06 September 1957
• Citation: 315 P.2d 148,211 Or. 40
• Parties: Elsie KING, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION, Appellant.
• Court: Oregon Supreme Court

Page 148

315 P.2d 148

211 Or. 40

Elsie KING, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION, Appellant.

Supreme Court of Oregon, In Banc.

Sept. 6, 1957.

Joe B. Richards and Luvaas & Cobb, Eugene, for respondent.

Robert Y. Thornton, Atty. Gen., and Earl M. Preston and Ray H. Lafky, Asst. Atty. Gen., for appellant.

ROSSMAN, Justice.

The petition for a rehearing filed by the appellant, State Industrial Accident Commission, contends:

'The Court erred in finding that the decedent met his death by injury arising out of and in the course of his employment while enroute to work.

'The Court decision recites:

"Without again analyzing the testimony, we express our belief that it warranted a finding that the construction of the log boom was performed by King as an employee and that at the time of his death he was on his way to resume work upon that object.'

'The decedent workman was not at work. He was 'on his way to work.' He was in his own conveyance. He was not being paid either for use of the conveyance or his time in going to and from work. He was not on the employer's premises.

'The Commission had allowed the claims of the other three on the theory that they were in King's boat, King was the employer and the transportation was part of the contract of employment with King.

'When viewed in the light that King and the other three were employes of Huber & Fisher there were none of the travel time tests such as employer's conveyance, employer's premises, pay for travel time or pay for transportation.'

The petition challenges our opinion in no other detail. No brief accompanied it.

Unless we misinterpret the petition for a rehearing, it is based upon a fear that, in sustaining the award of compensation decreed by the circuit court, we acted upon a belief that a workman, who sustains an injury while on his way to his employer's premises but before he arrives there, is entitled to an award of compensation even though he can point to no special circumstances affecting his situation. We acted under no belief of that kind. This court has more than once recognized that under our Workmen's Compensation Act, ORS 656.002 et. seq., only those are entitled to compensation who are the victims of an accident which arose out of and in the course of their employment. One who can say nothing more for himself than that he was on his way to his employer's premises when injury befell him does not bring himself within the terms of the act. Hopkins v. State Industrial Commission, 160 Or. 95, 83 P.2d 487, and March v. State Industrial Commission, 142 Or. 246, 20 P.2d 227. In our previous opinion, 309 P.2d 159, 162, we pointed out that King's death occurred while he and his three fellow workmen were crossing Alsea Bay in a boat which Kind owned and which

'would have been necessary to their work of stringing the log sticks * * *. The trip across the bay, two miles in length, was the only means by which the group could have reached the boom which they were constructing.'

It was under those and some ancillary circumstances that we reached the conclusion and employed the words which the petition for a rehearing criticizes. We will now reconsider the question as to whether or not those circumstances warranted the award which the circuit court decreed.

Unless resort is had again to the record, the words which we quoted from the petition for a rehearing may mislead. One of the utterances is this: 'He was in his own conveyance. He was not being paid either for use of the conveyance or his time in going to and from work.' The following statement contained in our previous opinion is not challenged by the petition for a rehearing: 'The boat which King possessed would have been necessary to their work of stringing the log sticks.' All four men were in the boat when fate struck. It is true that King owned the boat in which he and his three fellow workmen were crossing the bay, but the boat was essential to the work which they proposed to do. All four would have used the boat. Its relation to the work that the men were doing was similar to that of the piledriver. It was an implement or device which was essential to the prosecution of the work. The statement, 'He was not being paid either for use of the conveyance or his time in going to and from work' is not supported by the record. According to Schneider, Workmen's Compensation Text, Perm.Ed. § 1751:

'And it has been held that a contract to furnish an employee with necessary transportation 'may be implied from the acts of the employer who tacitly permits his employees to ride to and from work on a conveyance used for some purpose in connection with the business in which he is engaged.''

Before going on to the issue to which we will devote most of our attention, we will take note of some evidence concerning the boat. The decedent [King] owned the boat in which the men were crossing the bay when death struck. But his employers, Huber & Fisher, had a small tugboat which the men could have used had they so wished. The tugboat was available to them the morning of the fatality. L. C. Huber, of the firm just mentioned, in referring to the boat and the four workmen, testified 'Q. Did you have your tug tied up to the dock that the Kings used? A. No. The tugboat was tied up river. It was docked at----

'Q. Well, it wasn't at the same location? A. No, not the same location. However, they did have access to it.

'Q. Would King and his men have been free to have used the tug on the date of the accident? A. Oh, yes.

'Q. They could have used it? A. Yes.

'Q. It would have been much safer transportation? A. Oh, yes. The accident wouldn't have happened. However, they were conscientious fellows. We gave them free use of the tugboat any time they wanted it for that matter. But he was a little bit concerned about doing damage to it or one thing or another. It was expensive and they decided to use their own boat.'

An individual, by the name of Victor Quist, whose vocation was fishing and salvaging logs, was frequently at the dock when King and the other three men left to cross the bay. According to him, the men sometimes used King's boat and 'They used many times Huber's tug.' By 'Huber's' he meant the boat belonging to Huber & Fisher. The following is also taken from his testimony:

'Q. But you did know that they rode across on that tug? A. Yes.

* * *

* * *

'Q. You stated that you saw the Kings, as you knew them--the group, the four--on occasions would ride on the tug over to the scene of this operation? A. Yes.'

No one questions any of the above testimony. Quist also swore that he was familiar with the manner in which boom sticks are fashioned into log booms. After describing the size of boom sticks and the manner in which the end of one is fastened to the end of another by chains so as to make a continuous string, he pointed out that in the construction of a log boom a boat is necessary; for example:

'Q. Do you know whether or not in placing them a boat is used? A. Yes, a boat is used.

'Q. Can't be done on foot by standing in the water? A. No.'

The record contains no testimony to the contrary. The water at high tide in the area where the men worked was 20 feet deep.

Two of those who testified went to the site of the incomplete log boom the day after the disaster and, in response to questions, described what they found there: logs, piledriver, boom sticks, the unfinished log boom, etc. They mentioned no boat.

In view of the fact that two boats were available to the men and they chose King's, the smaller, it seems permissible to infer that they must have believed that for the work to be done that day the smaller would be the more useful. The boat, as we have seen, served a dual purpose. Since one was essential to the work underway, it appears reasonable to believe that the men were under an implied duty to take King's boat, if they rejected the employers'. It would have been impossible for the men to reach the place of their employment that morning without a boat and, likewise, it would have been impossible for them to have performed their work without one.

We come now to the issue as to whether or not the deceased, King, came to his death 'by accident arising out of and in the course of his employment.' The quoted words were taken from ORS 656.152.

Larson's Workmen's Compensation Law, § 18.24, speaks of 'carrying employment impedimenta to and from work.' The treatise gives attention to Gelbart v. New Jersey Egg Producers Ass'n, 7 A.2d 636, 640, 17 N.J.Misc. 185, in which the deceased workman, for whose death compensation was sought, was entrusted by his employer with the keys to the plant and was required each morning to open the doors. Upon the morning of the fatality he was on his way to the plant, with the keys in his pocket when a motor vehicle collision took his life. Compensation was ordered by a decision, which said:

'It is a reasonable inference and I find as facts: That the custody of the keys by the decedent in the instant case was an act obviously beneficial to the employer; that the accident occurred while he was traversing the direct route from his home to respondent's place of business * * *; and that in the procuring of the keys entrusted to his care and custody, he was performing an act incidental to his employment and for the benefit of his employer; that the accident occurred at a time when he was performing duties within the course of his employment; and that the accident arose out of and in the course of such employment and within the construction of the statute of this State as annunciated by the decisions of this and the other Courts of this State; * * *.'

In Davis v. Bjorenson, 229 Iowa 7, 293 N.W. 829, 830, the item of 'impedimenta' was an automobile which the workman [claimant] owned and which was used as a service car in his employer's business. The employer sold and serviced farming implements. The claimant was the serviceman. He was injured while driving from...