Pillen v. The Workmen's Compensation Bureau of State

• Decision Date: 23 February 1931
• Citation: 235 N.W. 354,60 N.D. 465
• Court: North Dakota Supreme Court

235 N.W. 354

60 N.D. 465

MRS. MATHEW PILLEN, Respondent, v. THE WORKMEN'S COMPENSATION BUREAU OF THE STATE OF NORTH DAKOTA, Appellant

Supreme Court of North Dakota

February 23, 1931

Appeal from the District Court of Mercer County, Berry, J.

Reversed.

Thos J. Burke, Assistant Attorney General, for appellant.

Charles L. Crum and Scott Cameron, for respondent.

BurkeJ. Christianson, Ch. J., and Birdzell, Nuessle, and Burr JJ., concur.

OPINION

BURKE

At the time of the accident in this case, the Hughes Electric Company was building the new power plant immediately east of, and at the end of the main street in Beulah, North Dakota.The property was entirely enclosed with a fence.The main street of Beulah extends right down to the gate in the fence through which employees and persons having business with the Hughes Electric Company or the Fuel Economy Engineering Company pass.The power plant is back about three hundred feet east of the gate.About three blocks west of the gate the general traveling public not having business with the Hughes Electric Light Company or the Fuel Economy Engineering Company turned south and went around the plant, and while the main street extended to the gate and the property on either side of the street was not owned by the Hughes Electric Light Company the principal traffic on the end of the street was by employees, and persons having business with the Hughes Electric Light Company and the Fuel Economy Engineering Company.

Prior to the accident Mathew Pillen, a mechanic, was employed by the said Hughes Electric Light Company, and during a part of that time the Fuel Economy Engineering Company was also employed by the Hughes Electric Light Company in the installation of machinery in the plant.On the sixth day of August, 1927, Pillen's employment with the Hughes Electric Company terminated, and he was employed by the Fuel Economy Engineering Company to assist in the installation of the machinery.He began working for the Fuel Economy Engineering Company on the seventh day of August, 1927, and on the eighth day of August, 1927, in going to his luncheon at noon he fell from a truck driven by an employee of the Fuel Economy Engineering Company, receiving injuries from which he died.

His widow filed a claim with the compensation bureau and after a hearing thereon, the claim was denied upon the ground that the injury was not received in the course of employment, thereafter, this action was brought in the district court, findings of fact and conclusions of law were made by the trial judge favorable to the plaintiff, and from a judgment thereon the defendant appeals.

The sole question involved, is, was Pillen injured in the course of his employment?The evidence relating to his employment and the accident is in substance as follows: Witness Samuel Helvik testified: "I was employed by the Hughes Electric Company, building a new power plant at Beulah, installing boilers, tubulars and condensers.The Fuel Economy Engineering Company was a subcontractor for steel work and was doing a part of the work under an independent contract.I employed Matt Pillen to work for the Hughes Electric Company.We furnished him transportation from Bismarck to Beulah and back, and we also paid his hotel bill at Beulah, for sleeping quarters and meals, and so much per hour.I think around sixty cents per hour.He worked about two weeks and then went to work for the Fuel Economy Engineering Company.Mr. Delaney was the foreman of that company and I mentioned to Mr. Delaney what I was paying and also the agreement I had with Mr. Pillen for board and room.At the time Pillen came to Beulah he stopped at the same hotel I did and where all the rest of the men working for the company (Hughes Electric Light Company) were staying and the same were ordered to stay.The bills for expenses for the Hughes Electric Company were all billed direct to the Hughes Electric Company of Bismarck by the hotel manager."Ques."Have you any knowledge about the bills of the Fuel Economy Engineering Company?"Ans."I could not say.There is another hotel and some of the employees of the Fuel Economy Engineering Company were staying in private houses.I don't know how the board and room of the Fuel Economy Engineering Company was paid for, and I don't know whether they asked them to live in a certain place."

Thomas W. Delaney testified: "I have charge of the men for the Fuel Economy Engineering Company.I employ them and discharge them.Mathew Pillen was working for the chief engineer of the Hughes Electric Light Company, who told me he wouldn't need Pillen any more on Saturday.So he started to work for me on Sunday morning, the seventh of August, and the accident was reported on the eighth day of August.He worked for me a day and a half.His wages were sixty cents an hour and living expenses, board and room, two dollars and fifty cents for board and room.There were no arrangements made by the Fuel Economy Engineering Company for the transportation of the employees to and from town.I did not direct the men to travel in any particular manner to and from work.If the Johnson truck was used by any of the men it was merely an accommodation by Johnson.Pillen was not on any errand for the company and had no purpose in going that day, except, to get his lunch.I know, for he worked directly under me at the boiler."

Mr. Johnson testified: "I am foreman of my own work for the Fuel Engineering Company.Pillen was not working for me.He was working on the boiler with Tom Delaney.I furnish my own tools and use my own car or truck.On the day he was hurt I was waiting for Tom Delaney and I hollered to Pillen 'Dad come back and ride with me.'The Fuel Economy Company does not furnish transportation.When I have the truck I haul the men who are working on the job with me.I couldn't haul all of them, there were eight or ten at the time, but some of the boys have their own cars, and the men ride with them too.The accident happened about 100 feet outside the gate.I wasn't driving fast.There was a car right ahead of me and I heard somebody holler and when I looked back the old man was lying on the road.We ran back picked him up and took him to the doctor's office.There is a fence clear around the property.He(Pillen) is in the habit of smoking most of the time.I think while he was lighting his pipe, his feet were hanging down, we struck that rough place in the road and before he got hold of anything he fell off.There was no transportation supplied on which the men were required to ride."

Gerhard Helvik testified: "I saw Mr. Pillen on the truck that day going to town for dinner.He was on the end gate on the back end, sitting with his feet hanging down.They hit a bump and the car raised up and the chain unhooked.I couldn't say exactly but something similar and the end gate fell down and he fell.I saw him fall, and went right to him."

Ralph Sanders testified: "I worked for the Hughes Electric Light Company at Beulah.Mr. Pillen worked in the power house which sets back to the west of what we call "Main Street" of Beulah.There is only one road running down there.He had to go that way.The power house they have it fenced in with fence across the end of the street and there is a gate there.I should judge about three hundred feet from the power house and then from the gate to the first house I would judge to be about a block two or three hundred feet.The road that runs down to the power house was used almost exclusively by employees of the Hughes Electric Light Company, and people having business with the company.If a person was going through east, they would turn south about three blocks before they got to the power house.Mr. Pillen generally rode to his meals with Mr. Johnson on his truck.I had my own car and there were times when the boys rode with me.It was general practice there for the fellows living in the hotel to pile into any car going in that direction.The street that goes down to the Hughes Electric Plant is the main street in Beulah, clear to the gate, but as I stated before, the traffic goes east before it reaches the gate."

From this testimony it is clear that neither the Hughes Electric Light Company nor the Fuel Economy Engineering Company had any contract with Mr. Pillen to transport him from the hotel to the plant, or the plant to the hotel.During the time that he worked for the Hughes Electric Light Plant under Mr Helvik, Johnson who was in the employ of the Fuel Economy Engineering Company, frequently invited him to ride on his truck in going to and from the hotel.There is no evidence that Pillen rode with Johnson after he was employed by the Fuel Economy Engineering Company, except, on the day of the accident, and it appears from the testimony of Johnson, that Pillen had started to walk to the hotel, for Johnson testified: "I was waiting for Tom Delaney and I hollered to Pillen 'Dad come back and ride with me.'"Delaney was delayed and they started for the hotel without him, Pillen sitting on the end gate which was apparently lying flat, level with the floor of the truck and held by chains.After driving about 100 feet from the gate and while Pillen was lighting his pipe the truck struck a rough place in the road, the chains holding the end gate became loose the end gate dropped and Pillen fell upon the ground.His employer, The Fuel Economy Engineering Company, did not own the premises upon which the electric light plant was being built, and was not under contract to transport Pillen to and from the hotel.The injury was received on a public street over which the employer had no control.Pillen was paid by the hour, was not under pay at the time of the accident and was not subject to the control of...