Philpott v. State Indus. Acc. Commission

• Decision Date: 28 March 1963
• Citation: 379 P.2d 1010,234 Or. 37
• Parties: Thomas J. PHILPOTT, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Appellant.
• Court: Oregon Supreme Court

Page 1010

379 P.2d 1010

234 Or. 37

Thomas J. PHILPOTT, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 5, 1963.

Decided March 28, 1963.

Thomas C. Enright, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

C. S. Emmons, Albany, argued the cause for respondent. On the brief were Willis, Kyle & Emmons, Albany.

Before McALLISTER, C. J., and PERRY, O'CONNELL, GOODWIN, and LUSK, JJ.

LUSK, Justice.

This is an appeal by the defendant, State Industrial Accident Commission, from a judgment of the circuit court sitting without a jury, which reversed an order of the commission disallowing plaintiff's claim for compensation for an accidental injury.

Plaintiff, Thomas J. Philpott, the owner and operator of a log truck, entered into an agreement with Schneider Lumber Company to haul logs for the latter from the woods to its mill near Brownsville, Linn County, Oregon. When not in use, the plaintiff kept his truck at his home. Early in the morning of August 17, 1960, plaintiff got into the cab of his truck, which was parked at his home, and started the motor preparatory to driving to the job site, when he discovered that he had forgotten his lunch, which he customarily took with him. He jumped to the ground, intending to return to his house and get his lunch, but landed in such a manner as to injure his right knee.

Both the plaintiff and Schneider Lumber Company were subject to the Workmen's Compensation Act. Plaintiff filed his claim for compensation with the defendant, which rejected it, and plaintiff appealed to the circuit court. It is conceded that the injury plaintiff sustained was accidental and that he would have been covered under the Workmen's Compensation Act if he had been hauling logs for Schneider Lumber Company at the time that he was injured. But the defendant contends that the accident was not one 'arising out of and in the course of his employment' as it must have been in order to entitle the plaintiff to recover benefits from the Industrial Accident Fund, ORS 656.152. ¹ This is the only question for determination.

The facts relating to plaintiff's employment are free from dispute in all essential particulars. He was paid at the rate of $6 per thousand board feet of lumber hauled by him. He furnished his own truck and bore all the expense of fueling, servicing and maintaining the truck. He was expected to make four trips a day--twenty miles each way--between the landing where he picked up logs and the mill where they were dumped, although there was no agreement to that effect. If, however, he did not make four trips a day, his employer would have gotten somebody else to do the hauling. He had the right to quit at any time he chose and the lumber company had the right to terminate the contract without liability for breach of contract. He could have driven to and from work in his passenger car; but, instead, he drove his truck home each evening rather than leave it at the landing or the mill, because the truck was secure at his home from thieves who might steal his gasoline and tools. Further, he kept at home grease and greasing equipment with which he serviced the truck in the evenings. He thus saved time in getting started to work. He was not paid for his time, but for the quantity of logs he hauled. He usually ate his lunch while driving, but occasionally might do so at the mill while the logs were being dumped.

Plaintiff's theory of recovery is, as we understand it, that the circumstances of this case are such as to constitute an exception to the well established rule that injuries sustained by employees when going to and coming from their regular place of work are not deemed to arise out of and in the course of their employment. King v. State Industrial Accident Comm., 211 Or. 40, 73, 309 P.2d 159, 315 P.2d 148, 318 P.2d 272; Hopkins v. State Industrial Accident Comm., 160 Or. 95, 102, 83 P.2d 487; March v. State Industrial Accident Comm., 142 Or. 246, 20 P.2d 227; Finley v. State Industrial Accident Comm., 141 Or. 138, 16 [234 Or. 41] P.2d 648. 'The reason for the rule' it is stated in 8 Schneider, Workmen's Compensation Text (perm. ed.) 3-6, 'is that the relationship of employer and employee is ordinarily suspended 'from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer.''

Exceptions to the rule are listed by Schneider, op. cit., § 1712, as follows:

1. Injuries sustained while proceeding to or from work on the employer's premises;

2. Injuries sustained off the premises of the employer, but while in close proximity thereto and while using a customary means of ingress and egress;

3. Injuries sustained while off the premises, but while proceeding to perform, or while proceeding from the performance of, a special task or mission;

4. Injuries sustained while being transported to and from the place of employment pursuant to contractual obligation.

An enumeration of cases in which the facts were held to be grounds for making exceptions to the 'going and coming' rule may be found in Hopkins v. State Industrial Accident Comm., supra, 160 Or. at 109, 83 P.2d at 492. It is probable that all the cases there referred to fall within one or another of the generalizations stated by Schneider. We are not to be understood, however, as suggesting that there is a closed category of exceptions. There may be others; but whether so or not, we find nothing in the facts of the present case to justify a holding that it is not governed by the general rule. The facts do not bring the case within any of the exceptions stated by Schneider nor make applicable any of the cases reviewed in Hopkins v. State Industrial Accident Comm., supra.

The plaintiff owned the truck. He was at his own home, miles away from the place where his work was to commence. He was not paid for the time spent in traveling to the job site. He was not in fact paid for his time at all, but for the results he accomplished--that is, the quantity of logs he hauled. He was in truth an independent contractor, though for the purposes of the compensation act he was carried on the books of the lumber company as an employee.

Plaintiff argues that in view of the requirement that he haul four loads of logs a day, it was of benefit to his employer for him to drive his truck to and from work because of the time saved in servicing the truck in the evening at his home. Eating his lunch while driving along the highway is also pointed to as a time-saving factor by which his employer profited. It is said that when the plaintiff got into his truck on the morning of the accident and started the motor he was to all intents and purposes on his way to his place of work, and that to return to the house for the purpose of picking up his lunch bucket which he had forgotten was incidental to the journey and to the service of his employer. Plaintiff further contends that, because the truck was not only his means of transportation, but also a necessary piece of equipment in the work of transporting logs for the lumber company, he should be regarded as rendering a service to his employer by 'carrying employment impedimenta to and from work.' Larson's Workmen's Compensation Law, § 18.24, quoted in King v. Industrial Accident Comm., supra, 211 Or. at 77, 315 P.2d at 150.

Since plaintiff owned the truck and was free to service it whenever and wherever he chose, and to use any means of transportation and take any route that he chose in going to and from work, and to eat his lunch at any time or place that he chose, we think that the argument based on benefit to his employer cannot be sustained. It is no different in substance from the contention in Stuhr v. State Industrial Accident Comm., 186 Or. 629, 208 P.2d...