McKenzie v. Railway Express Agency, Inc.
| Decision Date | 28 April 1939 |
| Docket Number | 32001. |
| Citation | 285 N.W. 529,205 Minn. 231 |
| Parties | McKenzie v. RAILWAY EXPRESS AGENCY, Inc. |
| Court | Minnesota Supreme Court |
Certiorari from Industrial Commission.
Proceeding under the Workmen's Compensation Act by W. E. McKenzie claimant, opposed by the Railway Express Agency, Inc. employer. To review an award of the Industrial Commission in favor of the claimant, the employer brings certiorari.
Affirmed and writ quashed.
Syllabus by the Court .
(1 and 2) An express messenger employed in a baggage car was within his employment while seeking protection from the cold in another baggage car nearby during the time he was waiting for the baggage car in which he was to work to be attached to a train.
(3) Where the employment exposed an employee to risk of injury from others, injury resulting from horseplay by such persons in which the employee did not participate and tried to avoid, arises out of and in the course of the employment.
R. H. Fry Berger, of Minneapolis, for relator.
Mark F. Clotty and C. E. Warner, both of Minneapolis, for respondent.
The employe, McKenzie, was an express messenger. On November 29, 1936, he reported at the Milwaukee Depot in Minneapolis for duty at about 9:30 p. m. to work in a baggage car to be attached to train No. 16 scheduled to leave at 10:15 p. m. on a run from Minneapolis to Chicago. He received and receipted for a small safe and some valuables which were placed on a platform truck. The truck was hauled down to the baggage car and placed opposite the door. The baggage car, which was several hundred feet from the depot building, was cold and not attached to any train at the time. It was to be picked up by train No. 16 when it pulled in. About 15 feet away on the track across the station platform, train No. 4 was waiting and about to start on a run to Chicago. It had a baggage car attached which was both heated and lighted. It was so cold that it was uncomfortable for the employe to be outside. He entered the baggage car attached to train No. 4 seeking shelter and protection from the cold during the short time that he had to wait. While there, one Rise, a baggage man employed by the railroad company, entered the car. He worked in the baggage car on train No. 16 which was next to the car in which McKenzie worked. Like McKenzie, he was waiting for the train to pull in and start on its run, and his reason for going into the baggage car on train No. 4 was also to seek shelter and protection from the cold. Rise had laryngitis, in consequence of which he spoke in a low, husky voice. He approached McKenzie, attempted to speak to him and tapped him on the shoulder. McKenzie attempted to get away from Rise and while doing so fell, either as a result of a push by Rise or by tripping in attempting to avoid him. As a result of the fall he sustained injuries for which he was awarded compensation. The employer contends that the injury did not arise out of and in the course of the employment for the reasons that (1) the employe had departed from his line of duty for his personal convenience and desires, which were not incident to the employment; (2) the injury occurred upon premises not under the control of the employer; and (3) the injury was not attributable to the employment.
(1 & 2) The workmen's compensation act covers workmen while engaged in, on or about the premises where their services are being performed, or where their service requires their presence as part of such service as such workmen. 1 Mason Minn.Statutes, 1927, § 4326(j). Acts of the employe necessary for his comfort and convenience, though strictly personal to himself, are incidental to the service, and injuries sustained while performing them are compensable. Kaletha v. Hall Mercantile Co., 157 Minn. 290, 196 N.W. 261. Seeking shelter from the cold is within the rule. Gillmore v. Ring Construction Co., 227 Mo.App. 1217 61 S.W.2d 764. The employe was required to wait until the baggage car was placed on the track before his actual work commenced. The place of his employment included the premises in the immediate vicinity of his work. Krause v. Swartwood, 174 Minn. 147, 218 N.W. 555, 57 A.L.R. 611. The nearby baggage car was such a place. It makes no difference in such a situation that the premises where the accident occurred were not under the employer's control at the time of the accident. Ludwig v. Farmers' Shipping Ass'n, 181...
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