Murdoch v. Humes & Swanstrom

• Decision Date: 19 December 1931
• Docket Number: 5754
• Citation: Murdoch v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472 (Idaho 1931)
• Parties: MRS. ROBERT RUE MURDOCH, Respondent, v. HUMES & SWANSTROM, Employers, and MARYLAND CASUALTY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

6 P.2d 472

51 Idaho 459

MRS. ROBERT RUE MURDOCH, Respondent, v. HUMES & SWANSTROM, Employers, and MARYLAND CASUALTY COMPANY, Surety, Appellants

No. 5754

Supreme Court of Idaho

December 19, 1931

WORKMEN'S COMPENSATION LAW-COURSE OF EMPLOYMENT.

Death of auto mechanic in accident while driving automobile on employer's business, held to have arisen "out of and in course of employment."

APPEAL from the District Court of the Ninth Judicial District, for Fremont County.Hon. C. J. Taylor, Judge.

Proceeding under the Workmen's Compensation Act.Judgment for plaintiff.Affirmed.

Judgment affirmed; costs to respondent.

James F. Ailshie, Jr., and J. H. Andersen, for Appellants.

An employee engaged in private or personal activities or who is acting out of curiosity or to gratify a personal desire at the time of the accident is not entitled to compensation.( New Cornelia Copper Co. v. Espinoza,268 F. 742;Baldwin v. Singer Sewing Machine Co.,49 Idaho 231287 P. 944;4 Thompson on the Law of Negligence, 2d ed., sec 3749, 25;28 R. C. L. 804, sec. 93;18 A. L. R. 526;15 A. L R. 579, notes;Sichterman v. Kent Storage Co.,217 Mich. 364, 20 A. L. R. 309, 186 N.W. 498;Kraft v. West Hotel Co.,193 Iowa 1288, 31 A. L. R. 1245, 188 N.W. 870;Norwood v. Tellico River Lumber Co., 146 Tenn. 682, 24 A. L. R. 1227, 244 S.W. 490.)

Where, for personal reasons, an employee leaves the place where he is employed and voluntarily exchanges places with another workman, an accident occurring does not arise out of or in the course of the employment.(Utah Copper Co. v. Industrial Com.,66 Utah 33, 33 A. L. R. 1327, 217 P. 1105, 23 N.C. C. A. 775;Lucky-Kidd Min. Co. v. State Industrial Com., 110 Okla. 27, 236 P. 600.)

Soule & Spalding and H. W. Soule, for Respondent.

We contend that this record complies with the requirements of this court in Walker v. Hyde,43 Idaho 625, 253 P. 1104, as to what must be shown for the allowance of compensation under the Compensation Act; that is, that we have not only shown that the accident arose out of, but also in, the course of the employment.Mr. Murdoch's authority to drive the car, in which he was injured, at the time and place of injury, was not only expressly authorized by Humes & Swanstrom, but the evidence also shows authorization from the usual custom of the business for a period of five years.This being true, any injury sustained by Mr. Murdoch while so driving automobiles would directly result from his employment and come within the Compensation Act.(In re Stewart (State ex rel. Gallet v. Bunker Hill & Sullivan Min. & C. Co.),49 Idaho 557, 290 P. 209;Maryland Casualty Co. v. Industrial Acc. Com.,39 Cal.App. 229, 178 P. 542;Bryant v. Fissel,84 N.J.L. 72, 86 A. 458;United States Fidelity & G. Co. v. Loyd, (Tex. Civ. App.)288 S.W. 662;Union Colliery Co. v. Industrial Com.,298 Ill. 561, 132 N.E. 200;Chicago Wilmington & Franklin Coal Co. v. Industrial Com., 303 Ill. 540, 135 N.E. 784.)

GIVENS, J. Lee, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

The sole question involved in this appeal is whether the accident which caused the death of Murdoch, an auto mechanic employed by Humes & Swanstrom, employers operating a garage and machine-shop, arose out of and in the course of his employment.

The specific point made by appellant being that the deceased had stepped aside or departed from his employment at the time of the accident.The Industrial Accident Board, and the district court concluded otherwise.

The material findings of the board are as follows:

"That on the said 19th day of September, 1929, one Robert Rue Murdoch, now deceased, was in the employ of the defendants, Humes & Swanstrom, as the foreman of their shop in said Village of Ashton, and had been so in their employ for approximately five years; that as the foreman of the said defendants, Humes & Swanstrom, it was the duty of said Murdoch to have full charge of all mechanical work coming into the shop; or being called for outside the shop, to look after the interests of the shop from the standpoint of sales of parts, new and second hand automobiles, and of anything that was a benefit to the shop and firm, and to make the business pay and have a good reputation, to go where ever the public asked for a mechanic, to answer all questions by the public regarding the business at any time calls for that purpose came into the shop, to go out and care for wrecked automobiles and other machines; that when he went out on trips for his employers, he was paid for the time he was on the road going to and from the place where work was to be done.

"That on the morning of said 19th day of September, 1929, one George W. Zarn, who had charge of some elevators operated by certain grain dealers, came to the place of business of the defendants, Humes & Swanstrom, with a part of a gas engine that needed repair; that one Freeman A. Humes, one of the members of the firm of Humes & Swanstrom, defendants herein, helped said Zarn to repair the part of the gas engine; that a few minutes after said part was repaired the said Murdoch, now deceased, came to the shop to commence work and at the request of said Zarn, the said Freeman A. Humes, above mentioned, instructed the said Murdoch, now deceased, to go to Warm River, the place where the gas engine, from which the part repaired by Zarn and Humes had been taken, was located and replace the repaired part on the engine, telling him to 'go in Zarn's car.'

"That thereupon said Zarn and said Murdoch entered the car which the defendant Humes had referred to as Zarn's car and proceeded on their way to Warm River with Zarn driving the car; that said car was the property of said George W. Zarn and was known as a Whippet Coach; after said Zarn and said Murdoch, now deceased, had proceeded a little way on the road to Warm River, Murdoch remarked to Zarn that he had never driven a Whippet car and indicated that he would like to try to do so; that Zarn said to him 'Get under here and take it'; that thereupon said Murdoch took Zarn's place as driver of the automobile and Zarn took the place in the automobile Murdoch had occupied and Murdoch proceeded to drive the automobile; that after they had proceeded with Murdoch driving until they came to a hill about four miles from Ashton, and while the automobile was being driven at a rate of speed estimated between 30 and 35 miles an hour, Murdoch allowed the automobile to coast down the hill and run into a streak of loose gravel from three to four feet wide and one hundred fifty feet long and four to five inches deep; that when the automobile struck said loose gravel it turned over throwing Zarn clear and landing on its side and on Murdoch's head and body; that from the injuries received by Murdoch, as a result of the car landing on him, he died within a short time after he was released and on said 19th day of September, 1929."

These findings closely and accurately follow the undisputed evidence, and certain evidence brought out by appellants on cross-examination of Humes, one of deceased's employers, amplifies and elucidates FindingNo. 4.

The witness Humes testified:

"Q.Do you mean you could drive the third man's car without getting the consent and authority of the other man?A.I would get the power from the man and pass it on to Mr. Murdoch.

"Q.Some one obtained the consent of the third party?A.As a rule.

"Q.As a rule?A.Sometimes I wouldn't be at the shop and possibly things would transpire when I was away.

"Q.In that case Mr. Murdoch would get the consent and authority?A.Yes.

"Q.In other words, you or someone representing the shop would have to get authority, express or implied authority if it happened to be someone you knew very well, to drive the car?A.Yes. . . . "

"Q.In other words, he(Murdoch) had no manual labor to perform after he left your shop at Ashton, until he reached Warm River, did he?A.Probably not manual, but may I just divert a little?

"Q.I would object to it."

Mr. Worstell: "Don't divert--if counsel objects, just answer the questions."

Mr. Ailshie: "Q.In other words, he had nothing to do during the time that he was traveling from Ashton to Warm River except to sit in the car?

Mr. Sorenson: "I think that is objectionable from this viewpoint, that it is an assumption that he says that he had nothing else to do."

Mr. Worstell: "I will overrule the objection.The witness may answer."

"A.Yes, he did.

By Mr. Ailshie: "Q.What did he have?A.He was still in my employ and every second of his time no matter what he figured on, any knowledge that he gained belonged to me.

"Q.He was in your employ?A.Yes.

"Q.Willyou tell me what he had to do in your employ during that time he was riding out to Warm River?A.Yes.He was riding in a car that was a competitor of mine and any feelings or actions that he could derive from that car to enlighten me on my competitive sales he would let me know.

"Q.He would let you know?A.Yes.

"Q.And he was riding in that for the purpose of observing?A.Absolutely.

"Q.Do you know whose car that was--was it Mr. Zarn's?A.Supposedly to be his car.

"Q.That is all."

Appellant contends that when Murdoch took the wheel, he stepped out of his employment.

The general rule applicable to scope of employment is stated in Zeier v. Boise Transfer Co., 43 Idaho 549, 254 P. 209, 210:

"'It is essential to the right to compensation that the injury shall have been received in the course of the workmen's employment; that it shall have been received while he was doing some act reasonably incidental to his work.An accident or injury is so received while it occurs while he is doing what a man in like employment may reasonably do within the...