Munson v. State Indus. Acc. Commission

• Decision Date: 21 March 1933
• Parties: MUNSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

20 P.2d 229

142 Or. 252

MUNSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

March 21, 1933

Department No. 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Proceeding by Nonah I. Munson to recover compensation under the Workmen's Compensation Act for the death of Perry L Munson, employee, opposed by the State Highway Commission employer. From a judgment for claimant on appeal from an order of the State Industrial Accident Commission rejecting the claim, the latter Commission appeals.

Affirmed.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for appellant.

Borden Wood and Theodore Opsund, both of Portland (C. L. Starr and Ralph H. King, both of Portland, on the brief), for respondent.

CAMPBELL Justice.

Perry L. Munson was employed by the state highway commission in the capacity of foreman of a fence crew, working in certain districts throughout the state. The employer and employee were contributors to and operated under the provisions of the Workmen's Compensation Act (Code 1930 § 49-1801 et seq.).

During the week ending August 15, 1930, Munson's crew was working in the vicinity of Springdale, located about 26 miles east of Portland on the Upper Columbia River Highway.

Among other duties, Munson was required to make weekly reports to the district resident engineer whose office for that district was at McMinnville, Or. These reports contained the time of himself and his crew, progress of work, supplies, and materials consumed in the work, and memoranda of purchases. With the exception of two occasions, while working in the district over which the engineer at McMinnville had control Munson delivered his reports to that office in person while on the way to his home in Rockaway, Or. The trip was always made in an automobile belonging to Herbert F. March, a member of Munson's crew and who also lived in Rockaway.

After the completion of the week's work on Friday, August 15, 1930, about 4:10 p. m., Munson was traveling in March's car on his way to Rockaway via McMinnville, at which latter place he was planning to deliver his weekly reports. While on the Base Line Road, and before he reached Portland, an accident occurred in which Munson sustained fatal injuries, dying five days later. The route traveled was the direct way to his home.

Munson's widow, plaintiff herein, filed a claim with the State Industrial Accident Commission, which claim was rejected by the said commission on the ground that the injuries sustained did not arise out of and in the course of employment.

An appeal was taken from the findings of the commission to the circuit court for Multnomah county where the case was tried to a jury. After all the evidence was in, both sides requested a directed verdict. The jury was discharged and the court entered findings of fact and conclusions of law in favor of plaintiff upon which judgment was entered. Defendant appeals.

It is conceded that deceased died as the result of a personal injury caused by violent or external means. Appellant has specified ten assignments of error, yet the only question presented by the record is, Did the injuries sustained "arise out of and in the course of the employment"?

It appears from the record that throughout the entire course of employment of deceased with the state highway commission he delivered his weekly reports in person to the district office of that district in which he happened to be working at the time and that the employer acquiesced in that method of delivery. Walters v. Dock Commission, 126 Or. 487, 245 P. 1117, 266 P. 634, 270 P. 778. These reports were required to be made out at the end of each week and could only be made out after the week's work of forty-eight hours had actually been completed.

Mr. Davies, the office man in the resident engineer's office at McMinnville, on cross-examination testified:

"Q. Under the practises out of your office, when would the report of a crew whose week ended Saturday night have to be submitted? Could it be submitted at any time before the close of the week? A. So it got there about Monday or Tuesday.

"Q. Could it be prepared before the close of the week? A. No.

"Q. The final form? A. The final form would be completed at the end of the week they worked. In other words, they could not complete their time until they had actually worked it."

These reports were required to be in the office of the district engineer promptly in order to facilitate the making up of the pay roll.

He also testified that though the rest of the foremen generally mailed their reports in, that they sometimes delivered them personally as they came by the office.

Mr. Eason, the district engineer, and one of appellant's witnesses, testified that it was never understood between him and decedent that the reports were to be sent by mail.

"Q. But it was understood that it had to come by mail, was it? A. It is generally understood.

"Q. I am asking you if it was ever understood between you and Mr. Munson that that report had to come by mail? A. Well, I didn't demand it, no.

"Mr. King: Would you kindly read the question, Mr. Reporter?" (The question was read.) A. No."

Mr. Tate, the third member of the crew that was in the party, at the time the accident occurred, testified in effect that it was the practice of Mr. Munson to deliver the reports in McMinnville personally. He further testified that when the crew were working at Salem, "coming home from Salem, we went around by McMinnville and delivered the reports; and as we went back, we went by the Dallas cut-off, which is ten miles shorter"; that Mr. Munson had a report with him at the time of the accident on August 15, 1930.

Mrs. Munson, wife of decedent, and respondent herein, testified, on direct examination, that when deceased worked in the Tillamook district, with the district headquarters located at Tillamook, it was the custom of deceased to deliver the reports to the office of the resident engineer at Tillamook. The work in that district, in some instances, was carried on north of Rockaway, which necessitated decedent to pass through Rockaway, where his home was located, to Tillamook to deliver the reports and retrace his route back to Rockaway, thus causing him to go out of his way.

Thus, the evidence seems to be sufficient to uphold respondent's contention that a strong inference might reasonably be drawn that deceased would have delivered the reports personally, regardless of where he would have been working in the state, to the head office of a particular district, without thought as to how far such a procedure would take him out of his homeward route. The uncontradicted evidence is that there were no instructions given him as to how he should deliver the reports.

The adjudicated cases of this state and of other states would appear to be in hopeless confusion, yet a careful analysis of the facts and circumstances of each of those cases will show that they all may be practically reconciled.

"'In determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant...