Palmer v. J. A. Terteling & Sons

• Decision Date: 04 June 1932
• Docket Number: 5865
• Citation: 52 Idaho 170,16 P.2d 221
• Court: Idaho Supreme Court
• Parties: MEADA M. PALMER, Appellant, v. J. A. TERTELING & SONS and STATE INSURANCE FUND OF THE STATE OF IDAHO, Respondents

16 P.2d 221

52 Idaho 170

MEADA M. PALMER, Appellant, v. J. A. TERTELING & SONS and STATE INSURANCE FUND OF THE STATE OF IDAHO, Respondents

No. 5865

Supreme Court of Idaho

June 4, 1932

WORKMEN'S COMPENSATION ACT-MASTER'S LIABILITY, NATURE OF-SCOPE OF EMPLOYMENT.

1. Application of law to undisputed facts raises question of law.

2. Proprietor's liability for injury to contractor's or subcontractor's employee extends only to injuries sustained while working in proprietor's business under his contract (C. S., sec. 6287a, as added by Laws 1921, chap 217, sec. 19).

3. Construction partnership employing contractor held not liable for compensation for contractor's truck driver's fatal injury while on errand for contractor (C. S., sec 6287a, as added by Laws 1921, chap. 217, sec. 19).

4. Injury to driver of contractor's truck while on errand for contractor's employer's job did not "arise out of and in course of employment" if driver was employed directly by contractor's employer (C. S., sec 6213 et seq., as amended).

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Charles F. Koelsch, Judge.

Action for compensation under Workmen's Compensation Act. Judgment for employer and surety. Affirmed.

Judgment affirmed. Costs to respondents.

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

Injuries to employee of general employer while working for third party under contract held within employment by general employer rendering latter's insurer liable. That employer when employees sustained injuries might have been engaged in ultra vires act is immaterial as affecting right to compensation. ( Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612.)

An injury arises in the course of the employment when it takes place within the period of employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of the employment or doing something incidental to it. (Zeier v. Boise Transfer Co., 43 Idaho 549, 254 P. 209; Stakonis v. United Advertising Corp., 110 Conn. 384, 148 A. 334, 336; Murdock v. Humes & Swanstrom, 51 Idaho 459, 6 P.2d 472.)

Charles F. Reddoch and J. J. McCue, for Respondents.

A principal contractor cannot be held liable for an injury to an employee of a subcontractor unless such injury arises out of facts or circumstances which would impose a liability upon him for injuries to his immediate employees, under like circumstances. (C. S., sec. 6287A, as enacted by chap. 217, Sess. Laws 1921, p. 481; In re Fisk, 40 Idaho 304, 232 P. 569; Modlin v. Twin Falls Canal Co., supra; Workmen's Compensation Pamphlet, Cyc. Corpus Juris System, p. 50.)

The deceased at the time of his injury was following directions of his immediate employer in procuring material and supplies, which material was to be used in repairing an instrumentality intended to be used in his contract with the principal contractor and about which the latter knew nothing, and under such circumstances no liability attached to the principal contractor. (Morey v. City of Battle Creek, 229 Mich. 650, 38 A. L. R. 1039, 202 N.W. 925; State ex rel. Jacobson v. District Court of Hennepin County, 144 Minn. 259, 175 N.W. 110; Jotich v. Village of Chisholm, 169 Minn. 428, 211 N.W. 579; Zenker v. Zenker, 93 Pa. Super. Ct. 255; Kneeland v. Parker, 100 Vt. 92, 48 A. L. R. 1396, 135 A. 8.)

VARIAN, J. Budge, Givens and Leeper, JJ., and Sutton, D. J., Lee, C. J., concur.

OPINION

VARIAN, J.

Appellant initiated this proceeding before the Industrial Accident Board to recover workmen's compensation for the death of her husband, J. T. Palmer, against J. A. Terteling and Sons, a copartnership, and their surety, the State Insurance Fund. The board made an award allowing appellant $ 12 per week, for 400 weeks, compensation for the benefit of herself and three minor children, and $ 195 burial expenses. On appeal the district court adopted the findings of fact of the Industrial Accident Board but reversed its conclusions on questions of law, and vacated the award. From this judgment claimant appeals. There is no question as to the award in so far as the amount thereof and beneficiaries are concerned. The fundamental question is whether J. A. Terteling and Sons, and their insurance carrier, are liable for the payment thereof.

The findings of fact made by the Industrial Accident Board are sustained by the evidence and, in so far as the same have any bearing on the issues raised, are substantially as follows, viz.: On April 14, 1931, and for some time prior thereto, the copartnership of J. A. Terteling and Sons was engaged in building and repairing highways in Elmore county, under contract, and had secured payment of compensation to their employees by insurance with respondent, State Insurance Fund, as surety. Prior to April 14, 1931, one C. J. Palmer entered into a contract with respondent J. A. Terteling and Sons, whereby he agreed to furnish them with trucks and men to haul road material to and upon the road then under construction by said copartnership, for which said Palmer was to receive $ 3 per hour for each truck and driver for all the time they were engaged in hauling road material for J. A. Terteling and Sons. Payment was to be made for the use of the trucks from the time each arrived on the job until it left the job. C. J. Palmer and J. A. Terteling and Sons likewise agreed that all employees of said Palmer should be covered by the insurance carried by said copartnership with the State Insurance Fund while engaged in working for J. A. Terteling and Sons, and that the cost of carrying said coverage should be deducted from the amount to be paid by J. A. Terteling and Sons to C. J. Palmer "for work done under their contract." The board also found that J. T. Palmer was employed by his brother, C. J. Palmer, to drive one of the trucks in hauling road material under the latter's contract with respondent J. A. Terteling and Sons; that the contract of hire between the Palmers required the driver, J. T. Palmer, to keep his truck in repair for the hauling job, and he was to receive from C. J. Palmer sixty cents per hour for all the time he was employed, i. e., "while driving the truck on the job, while repairing the truck, and while going to and from the job or to or from places for getting repairs for the truck or supplies used by said C. J. Palmer at a camp maintained by him for his crew." The board further found that on April 14, 1931, aforesaid, about 5:30 P. M., J. T. Palmer, acting under instructions of his immediate employer C. J. Palmer, left Mountain Home and proceeded to the place where J. A. Terteling and Sons were getting their road material, where he was informed by the foreman in charge that his truck would not be required until about midnight of said day; that he then returned to C. J. Palmer's camp and obtained another truck in which, under previous instructions from said immediate employer, he proceeded, with another employee of C. J. Palmer, to Glenn's Ferry to obtain repairs for the truck he was using in hauling road material and certain supplies (a sack of coal) for the C. J. Palmer camp. Having obtained said repairs and supplies J. T. Palmer and his fellow workman proceeded to return to the C. J. Palmer camp, intending to drive from there to the place where the road material was to be hauled. When about one and one-half miles west of Glenn's Ferry, at about 11:00 P. M., the truck, while being driven by J. T. Palmer, overturned and fatally injured him so that he died from said injuries on April 16, 1931. The board likewise found "That the injuries from which J. T. Palmer died, as above said, were the result of an accident arising out of and in the course of his employment with the said C. J. Palmer, and that said C. J. Palmer had not at the time of said accident nor at the time of the death of said J. T. Palmer complied with the provisions of Section 6278 of the Idaho Compiled Statutes, 1919, as amended." (Providing for security for payment of compensation.)

The evidence shows that C. J. Palmer owned two trucks which he contracted to J. A. Terteling and Sons on the basis of $ 3 per hour for truck and driver, during the actual time engaged in hauling on their job. They were carrying insurance in the State Insurance Fund, paying a premium based upon their pay-roll at the rate of $ 2.50 per $ 100 thereof. In making up their pay-roll statement for the insurance carrier they included therein the wages of the truck drivers at the rate paid by the immediate contractor for the actual time they were employed upon their job; not the amount they paid for the use of a truck and driver. In Palmer's case they included, in their pay-roll statement, sixty cents of the $ 3 per hour to be paid him, and deducted from his check the proportionate amount paid for premium. In no case did they include in the pay-roll statement wages of drivers for the time not actually engaged on their job, for which they paid Palmer at the rate of $ 3 per hour. Terteling and Sons were employing other trucks and drivers on this job at the time of the accident.

Appellant contends that the board having found that the injuries from which J. T. Palmer afterwards died were the result of an accident arising out of and in the course of his employment with C. J. Palmer, the trial judge, by his conclusion from all of the facts, found that, as a matter of law, J. A Terteling and Sons, or their insurance carrier, were not liable for compensation, made a finding of fact to that effect, and that the trial judge could not make a finding of fact contrary to those found by the Industrial Accident Board where the evidence sustained the latter's findings, citing C. S., sec. 6270; McNeil v. Panhandle Lumber Co., 34 Idaho 773, ...