Neale v. Weaver

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, J.
• Citation: Neale v. Weaver, 60 Idaho 41, 88 P.2d 522 (Idaho 1939)
• Decision Date: 09 March 1939
• Docket Number: 6583
• Parties: HERBERT A. NEALE, Respondent, v. H. J. WEAVER and STATE INSURANCE FUND, Appellants

88 P.2d 522

60 Idaho 41

HERBERT A. NEALE, Respondent, v. H. J. WEAVER and STATE INSURANCE FUND, Appellants

No. 6583

Supreme Court of Idaho

March 9, 1939

WORKMEN'S COMPENSATION-ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT-PROBABLE CONNECTION BETWEEN CAUSE AND EFFECT-EVIDENCE.

1. Evidence held insufficient to justify judgment reversing order of the Industrial Accident Board denying compensation for hand injury received by employee when he attempted to start automobile on employer's premises at noon preparatory to going home to lunch, on ground that infection entered wound in afternoon while employee was at work.

2. To constitute an accident "arising out of and in course of employment," there must be probable and not possible connection between cause and effect.

3. Mere presence of employee on employer's premises at time of injury is insufficient as basis of liability under Workmen's Compensation Act. (I. C. A., sec. 43-901 et seq.)

4. An injury to his hand which employee received when he attempted to start automobile on employer's premises at noon preparatory to going home to lunch was not compensable as "arising out of and in course of the employment" since, at time of accident, employee was engaged in nothing relative to furtherance of employment and was using no instrumentality furnished by or under control of employer or connected with employment which contributed to accident.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Appeal from judgment of the District Court reversing an order of the Industrial Accident Board denying compensation to respondent. Reversed and remanded.

Reversed and remanded. Costs awarded to appellants.

Carroll F. Zapp and Clarence L. Hillman, for Appellants.

Before respondent can recover for an accidental injury sustained on the employer's premises, it must be shown that the injury by accident arose out of and in the course of his employment. (Sec. 43-1001, I. C. A.; Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927; Larsen v. State Industrial Acc Com., 135 Ore. 137, 295 P. 195; Industrial Com. v Enyeart, 81 Colo. 521, 256 P. 314.)

Rayborn and Rayborn, for Respondent.

Injuries sustained by an employee when going from his work, while upon the employer's premises near to the place of employment are deemed to have arisen out of and in the course of employment, and are compensable. (Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; In re MacKenzie, 55 Idaho 663, 46 P.2d 73; Dutson v. Idaho Power Co., 57 Idaho 386, 65 P.2d 720; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A. L. R. 1402; 71 Corpus Juris, p. 716, sec. 445; Butlers Case, 128 Me. 47, 145 A. 394.)

GIVENS, J. Ailshie, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

GIVENS, J.

Appellant Weaver, produce dealer, had a warehouse at Filer where respondent was employed. February 10, 1936, at noon, preparatory to going to lunch respondent went to his automobile parked by a tin warehouse used by Weaver for storing sacks. This parking space on appellant's premises was not particularly provided for automobiles but was so used by employees and anyone doing business with appellant. Respondent, to start his car, choked the intake and used his right hand to hold a cable where a steel wire ran through the mechanism. He had a pair of pliers in his left hand which slipped and struck his hand on the choke, puncturing the skin on his left thumb. Respondent went home, secured his lunch, returned and helped pitch 15 pound sacks of potatoes into a truck. Towards evening his hand troubled him and on the 13th he saw a doctor, his thumb being infected; on the 15th he was taken to a hospital, his finger being gangrenous, and on March 11th the distal joint and part of the excess bone of the second joint was removed. He remained in the hospital until April 4th when he was discharged but his hand and lower arm continued stiff because of the infection.

It was respondent's usual custom to go back and forth at noon time for lunch. Appellant Weaver did not furnish the gas for respondent's automobile, had no control over the means of transportation and did not pay respondent for his time used in going home for lunch. No means or appliance connected with appellant's business contributed in any way to respondent's accident. It is contended this accident did not arise out of and in the course of the employment and the board so found, which order was reversed by the district court, hence this appeal.

Dr. Halley, called by respondent, testified as follows:

"Mr. LANGLEY: In your opinion what caused the infection that set in this man's thumb?

"A. The penetration of the foreign body, this foreign body and germs that were either present on the skin at that time or gained entrance into the wound later, staphylococcus and streptococcus causes the beginning of that, that infection.

"Mr. LANGLEY: Does that cover the matter you wanted to ask about?

"Mr. RAYBORN: I want to ask another question. A person receiving an injury such as you have outlined here and Mr. Neale gave you the history of having received, if he continued to work and handle onions and doing dirty work with his hands, would he not be more likely to get infection than he would if he had not worked after that time?

"Mr. ZAPP: I object to that as incompetent, irrelevant and immaterial and also speculative.

"Mr. LANGLEY: Objection overruled.

"A. Yes, I think the likelihood of infection would be greater in an unprotected open wound with dirt being worked into it."

Cross-examination by Mr. Zapp:

"Q. When the hand was cut, the germ might have been present on the hand at the time of the cut and also on the wire that cut the hand?

"A. That's true.

"Q. It is very probable in this case too, isn't it?

"A. Anything that is exposed to the air and dirt and germs on it, probably that would be true.

"Q. You are not able to say with any degree of certainty when the germ entered the skin?

"A. No."

This evidence of the inception of the infectious injury is too inconclusive to sustain the contention that the infection entered the wound in the afternoon while respondent was at work rather than at the time of the original puncture.

"To constitute an accident 'arising out of and in the course of employment,' there must be a probable, and not a possible, connection between cause and effect ( Nistad v. Winton Lumber Co. et al., 59 Idaho 533, 85 P.2d 236; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 297, 41 P.2d 605; Croy v. McFarland-Brown Lumber Co., [51 Idaho 32, 1 P.2d 189], supra; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992). Tested by that rule, it is clear there is a failure of proof, in that it appears from the above quoted testimony of appellant's witnesses, by which he is bound, the infection might or could have been caused by appellant's having scratched his neck, and not that it was probably so caused." (Brooke v. Nolan, 59 Idaho 759, 87 P.2d 470, this term decided.)

Respondent contends because the accident, that is the puncture of the thumb, occurred on the premises of the employer, it constituted an accident which ipso facto arose in the course of and out of the employment.

It is true numerous cases have made the general statement to that effect, but on a careful examination and analysis of those cases we find there were in all an additional feature showing a causal connection between employment or the condition of the place or means or appliance furnished, or under the control of the employer, directly or indirectly and at least to some extent, however slight contributing to the accident, or tying it into or with the employment, which, in addition to the employee being on the premises of the employer at the time of the accident constituted a sufficient makeweight to tip the scales and justifiably support the conclusion that the accident arose in the course of and out of the employment.

In Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515, the accident occurred on a board walk constructed by and on the employer's premises, furnished for the main purpose of being used by the employees, and likewise the third judge of the majority, based his conclusion on the fact that the employee was at the time of the accident on his way to punch a time clock as required by the employer. In Longhurst v. John Stewart & Son, Ltd., (1916) 2 K. B. 803, 32 T. L. R. 722, W. C. & I. Rep. 292, 9 B.W.C.C. 605 (affirmed 1917 App. D.C. 249), the therein quoted and supporting case, the circumstance of the accident showed more than mere presence on the employer's premises:

"The applicant was the widow of a workman who had been employed by the respondents, engineers and ship repairers, at work on a barge lying in a dock, the property of and under the control of the Port of London Authority. He left his work after it was dark, and while attempting to reach the gates which led from the docks on to the public road, fell into the water and was drowned. The public had not free access to the docks, and the respondent's workmen went in and out by permission of the dock authorities."

In re MacKenzie, 55 Idaho 663, 46 P.2d 73, the award in favor of the employee was expressly based on the finding of the board that:

" . . . MacKenzie left the generator building to see how the work of cleaning the sump was getting on, and for the purpose of ascertaining what was the best thing to do in and about the situation then present, and then to do such best thing; that he did so 'with the intent to advance the work of emptying the sump' and to further the work and interests of his master, and not to satisfy idle...