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 231
287 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 Finding No. 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. Will you 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...
