Nehring v. Minnesota Mining & Mfg. Co.

• Decision Date: 04 January 1935
• Docket Number: 30025.
• Parties: NEHRING v. MINNESOTA MINING & MFG. CO. et al.
• Court: Minnesota Supreme Court

258 N.W. 307

193 Minn. 169

NEHRING v. MINNESOTA MINING & MFG. CO. et al.

No. 30025.

Supreme Court of Minnesota.

January 4, 1935

Certiorari to Industrial Commission.

Proceedings under the Workmen's Compensation Act by Elsie Nehring to recover compensation for the death of her husband, Fred Nehring, deceased, opposed by the Minnesota Mining & Manufacturing Company, employer, and others. To review an award of the Industrial Commission, the employer and others bring certiorari.

Award affirmed.

Syllabus by the Court .

An employee whose regular services are performed at a stated place is not under the Workmen's Compensation Act (Mason's Minn. St. 1927, § 4261 et seq., as amended) while coming to or going therefrom; but, if subject to emergency calls, after his regular day's labor is ended he is under the act from the time he leaves his home on such call until he returns.

Oppenheimer, Dickson, Hodgson, Brown & Donnelly, of St. Paul for relators.

B. A. McLeod, of St. Paul, for respondent.

HOLT Justice.

Certiorari to review an award of the Industrial Commission. The widow and minor son of Fred Nehring, deceased, sought and obtained compensation for his accidental death while an employee of the relator Minnesota Mining & Manufacturing Company. The facts surrounding the death are these: The employer has its factory in the city of St. Paul about three miles from the home of Nehring. Nehring had worked for the company four or five years. He was a master electrician, and his work was confined to the factory of the employer. More than one shift was, at the time in question, used in the factory. He worked regular hours, for which his weekly wage was $50. He and other employees were required to come to the factory in case of emergency repairs, or the like, whenever called. For such work he was paid $1, plus the regular wages, for any time spent in excess of fifteen minutes. On Sunday, June 12, 1932, Nehring received a call at his home to come to the factory to replace a fuse. He habitually rode a motorcycle in going to and from the factory. He left home on his motorcycle at 4 or 4:30 in the afternoon of this Sunday, replaced the fuse, and started for home. On the way back he stopped at a wayside store, bought some bananas and ice cream, mounted the motorcycle, and proceeded toward home. He had gone but a short distance when, in a collision with an automobile, he was so injured that death ensued. The assignments of error attack the finding that, on June 12, 1932, the employee Fred Nehring ‘ sustained accidental injury arising out of and during the course of his employment’ with the Minnesota Mining & Manufacturing Company which resulted in the employee's death. If the evidence sustains this finding of fact, the conclusion of law rightly awarded compensation to respondents, the dependents of Fred Nehring.

Section 4326(j), Mason's Minn. St. 1927, reads: ‘ Without otherwise affecting either the meaning or interpretation of the abridged clause ‘ personal injuries arising out of and in the course of employment.’ It is hereby declared: Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services requires their presence as a part of such service, at the time of the injury, and during the hours of service as such workmen; provided, that where the employer regularly furnishes transportation to his employees to or from the place of employment, such employees shall be held to be subject to this act while being so transported. 'The above being a part of the Workmen's Compensation Act, it is clear that an employee who is employed in a factory is not under the Compensation Act while going to or returning from the factory to his home, unless he is furnished transportation to and from the factory by the employer. It was so held in Simonds v. Reigel, 165 Minn. 458, 206 N.W. 717; Jotich v. Village of Chisholm, 169 Minn. 428, 211 N.W. 579; Rosvall v. City of Duluth, 177 Minn. 197, 224 N.W. 840; Lorenz v. Wm. Lorenz Trunk Works, 187 Minn. 444, 245 N.W. 615; Kelley v. Northwest Paper Co., 190 Minn. 291, 251 N.W. 274. Therefore, had this accident occurred when Nehring, after finishing his regular day's work in the factory, was on his way to his home upon his motorcycle, his death would not be compensable, for it would not have been caused by an accident arising out of and in the course of the employment. It did not happen on the premises where his services were required, nor during the hours of his ordinary service. But courts view emergency work, such as Nehring was called to do, from a different standpoint than the ordinary daily services performed for a weekly or daily wage. In his ordinary work, the employee knows that he had to be at the proper place at a specified time to begin his services and continue them until a set time. Prior to the time set for beginning the service and after the services are ended for the day, the employee's time is his own, and he may dispose of it as he pleases. But if, while so off duty from his regular employment, he is called to do an errand or sent on a mission by the employer, the courts which have spoken on the subject hold it a special service begun the moment the employee leaves his home, or the place where the call comes to him, and ended only with his return. Such special employment, so begun and ended, may be implied from surrounding circumstances. The evidence showed that Nehring responded to approximately 25 emergency calls in the year 1932 up to June 12, the day of the fatal accident. When...