Livingston v. State Indus. Acc. Commission
| Decision Date | 10 February 1954 |
| Citation | 266 P.2d 684,200 Or. 468 |
| Parties | LIVINGSTON v. STATE INDUSTRIAL ACCIDENT COMMISSION. |
| Court | Oregon Supreme Court |
Wesley A. Franklin, Portland, argued the cause for appellant. On the brief were Anderson, Franklin & Landye, Portland.
Ray H. Lafky, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Roy K. Terry, Asst. Atty. Gen.
Before LATOURETTE, C. J., and LUSK, TOOZE and PERRY, JJ.
This is an appeal by the plaintiff, Christine Livingston, from the judgment of the circuit court for Douglas county, denying her claim for compensation under the provisions of Workmen's Compensation Law of this state.
Briefly, the facts are: Plaintiff's husband, Marion Livingston, was employed by the California-Oregon Power Company as an oiler on a shovel used in excavating river rock to be run through a rock crusher for use in the construction of a power dam. This dam was being constructed on the Clearwater river, a tributary of the North Umpqua river, in the Umpqua National Forest. To reach the crusher which was located farther up on the North Umpqua river than the dam, it was necessary to travel over a road constructed by the Power Company under a permit issued by the United States Forestry Department. While the road was constructed and maintained at the expense of the Power Company, and chiefly used by it, yet it was open to use by the general public.
The Power Company also maintained a company housing project at 'Clearwater', which was some 10 or 15 minutes drive by automobile from the scene of the dam construction. This camp was operated by the employer and the employes paid so much per day for board and room. As a part of the wages paid the workmen, the employer paid for 15 minutes travel time from the job site to the camp; workmen traveled to the job on their own time. In addition, the Company furnished transportation between the camp and the dam, which facilities the employes could use if they so desired, although they were not required to do so.
On June 30, 1951, Marion Livingston was riding in a motor vehicle owned and driven by a fellow workman. They were en route from the dam to the Clearwater camp when the vehicle ran off the road and into the river, and Marion Livingston was drowned. At the time of the fatal accident the automobile was being driven upon the road constructed and maintained by the Power Company. The accident occurred within the 15 minutes travel time for which decedent was paid by his employer.
The plaintiff, as the widow of Marion Livingston, deceased, filed a claim for widow's benefits with the State Industrial Accident Commission, pursuant to the provisions of § 102-1752, O.C.L.A., ch. 61, Oregon Laws 1947, ORS 656.152. Her claim was denied upon the ground 'that the accident of June 30, 1951, that caused the death of Marion Livingston, did not arise out of and during the course of his employment with the California-Oregon Power Company'. Plaintiff appealed to the circuit court for Douglas county. The trial court denied her claim upon the same ground adopted by the State Industrial Accident Commission.
The sole question for determination on this appeal is whether, under the facts as stated, the accident causing the death of Marion Livingston 'arose out of and in the course of his employment', within the meaning of our Workmen's Compensation Law.
This question has not been heretofore directly decided in this state. With commendable frankness, the able Assistant Attorney General admitted during the oral argument in this court that the question was a close one.
In a note in A.L.R. appended to the case of Voehl v. Indemnity Ins. Co. of North America, 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245, at page 250, the author states:
'It is a general though not invariable rule, so common as to require no citation of authority, that an injury sustained in going to or from work does not arise out of and in the course of the employment within the meaning of workmen's compensation acts.
'An exception to this rule, however, is generally...
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