Pohler v. T. W. Snow Const. Co.

• Decision Date: 02 August 1948
• Docket Number: 47207.
• Citation: 33 N.W.2d 416,239 Iowa 1018
• Parties: POHLER v. T. W. SNOW CONST. CO.
• Court: Iowa Supreme Court

33 N.W.2d 416

239 Iowa 1018

POHLER v. T. W. SNOW CONST. CO.

No. 47207.

Supreme Court of Iowa

August 2, 1948

Edward F. Rate, of Iowa City, and Morrison & Skaug, of Mobridge S. D., for appellant.

Miller Huebner & Miller, of Des Moines, for appellee.

GARFIELD Justice.

This is a workman's compensation case. The question presented to us is whether there is sufficient competent evidence to warrant the commissioner's finding that the employee's fatal injury arose out of and in the course of the employment.

Wm. F. Pohler had been employed by the T. W. Snow Construction Company for three or four years and worked for it in six states. Much of the company's work was upon pits, tanks and water mains for different railroads, especially the Milwaukee road. On November 8, 1945, Pohler had been working for three weeks near Mobridge, S. D., as supervisor of a crew of three including himself. The men were sleeping and eating in a bunk car furnished gratuitously by the Milwaukee which had been spotted on a sidetrack in its yards at Mobridge. About 12:45 a. m. on November 9 while crossing the tracks to reach the bunk car Pohler was run over and killed by a freight train.

The main street of Mobridge runs north from but does not cross the railroad tracks which extend east and west. There are seven main tracks and, further south, several sidetracks. The bunk car was on the south sidetrack. There is a cinder path varying in width from 10 to 25 feet from the south end of Main street south across the tracks. This path is commonly used by pedestrians in crossing the tracks.

About 4 p. m. on November 8 the men were forced to stop work because of an excess of seepage water in an excavation they were digging. Pohler concluded it would be necessary to get a pump and hose to remove the water from the excavation and intended that evening to contact one Hettle, a Milwaukee employee who had charge of a suitable pump and hose. After eating their supper in the bunk house Pohler and his two fellow servants, around 8 or 9 in the evening, walked into Mobridge over the cinder path in search of Hettle. They found him in town and arranged for their use of the pump and hose the next morning. This was done between 9 and 10. Pohler then said he was going to telephone his wife in Iowa City and walked a block or two north to a hotel for that purpose. His two companions ate a sandwich and returned to the bunk car about 10:45.

Pohler reached the hotel about 10 and placed a long distance call to his wife. The telephone circuits were 'slow and jammed.' Pohler attempted to get his call through for two hours but without success and about midnight left the hotel for the bunk car.

Pohler's body was found about 117 feet east of the cinder path along the south rail of the fourth track from the north. His left leg and arm were almost severed from the body. He had been run over by the 16th car of an eastbound freight train which had been standing across the cinder path and pulled out about 12:45. The train moved only two or three car lengths and came to a stop within about a car length after Pohler was run over. Several witnesses testified there was no evidence Pohler was intoxicated or had been drinking.

Following a hearing, deputy industrial commissioner Ralph Young as sole arbitrator found Pohler was fatally injured by accident arising out of and in the course of his employment and allowed compensation to his widow as claimant, for herself and minor daughter. Upon review by the industrial commissioner the award was affirmed. Upon appeal to the district court however, the award was set aside on the ground there was not sufficient competent evidence to warrant it. (See section 86.30, Par. 4, Code 1946.) From this decision claimant has appealed to us.

I. In passing on the sufficiency of the evidence to support the award we must consider it in the light most favorable to claimant. Griffith v. Norwood White Coal Co., 229 Iowa 496 498, 294 N.W. 741; Blankinship Logging Co. v. Brown, Ark., 208 S.W.2d 778, 779, and citations; Schulte v. Grand Union Tea & Coffee Co., Mo.App., 43 S.W.2d 832, 833.

II. In awarding compensation the industrial commissioner found Pohler's primary purpose in going to Mobridge was to arrange for the pump and held the injury arose while he was returning to his temporary home after performing this special service for his employer, within the doctrine of Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71. See also Otto v. Independent School Dist., 237 Iowa 991, 994, 23 N.W.2d 915, 916. The district court upheld this finding as supported by sufficient competent evidence.

Appellee-employer concedes Pohler was in the course of his employment when meeting Hettle to arrange for the pump and if he had returned directly to the bunk car after seeing Hettle he would have been in the course of his employment until he reached the car. Appellee contends, however, that by going to the hotel, placing the phone call and waiting there for the call to be completed, Pohler abandoned the special mission for his employer and was not in the course of his employment when injured. The district court rejected this contention. However, appellee is entitled to urge it here in support of the court's decision which was placed on another ground. Humphrey v. City of Des Moines, 236 Iowa 800, 803, 20 N.W.2d 25, 26; Wentland v. Stewart, 236 Iowa 258, 261, 18 N.W.2d 305, 306, and citations.

As pointed out in Otto v. Independent School District, supra [237 Iowa 991, 23 N.W.2d 916], the opinion in Kyle v. Greene High School seems to confuse the two requisites for compensability, 'arising out of' and 'in the course of' employment, and what the Kyle opinion principally considers, is the second of these two requisites. Appellee apparently acquiesces in this view.

Under the Kyle opinion and the authorities therein cited as well as many others, an employee, though not at his regular place of employment and outside customary working hours, is within the course of his employment while performing some special service or errand or duty incidental to his employment in the interest of his employer and also while on his way from his home to perform, and on his way home after performing such service, errand or duty. As stated in Nehring v. Minnesota Mining & Mfg. Co., 193 Minn. 169, 258 N.W. 307, 308:

'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.'

It follows and, as stated, appellee concedes that Pohler, if he had not deviated from his course in order to place the phone call, would be within the course of employment while going to Mobridge to see Hettle and returning to the bunk car after seeing him.

We agree with the trial court there is full support in the evidence for the commissioner's finding the principal reason for Pohler's trip to Mobridge was the special errand for his employer to arrange for the pump. The commissioner found Pohler's placing the telephone call was merely incidental. Under these circumstances it is proper to apply the test announced in the leading case of Marks' Dependents v. Gray (Cardozo, C. J.) 251 N.Y. 90, 167 N.E. 181, 183: 'If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.'

Among decisions which approve the Marks case are Brown v. Weber Implement & Auto Co., Mo.Sup., 206 S.W.2d 350, 354; Lindell v. Minnesota American Legion Publ. Co., 208 Minn. 415, 294 N.W. 416, 418, and citations; Barragar v. Industrial Commission, 205 Wis. 550, 238 N.W. 368, 370, 78 A.L.R. 679. See also 71 C.J., Workmen's Compensation Acts, section 420.

Under these authorities the fact that an incidental purpose of Pohler in going into Mobridge was to telephone his wife does not change the essential character of the trip from a special errand for the employer.

Like the trial court, we cannot accede to appellee's contention that placing the phone call and the two hours wait were, as a matter of law, an abandonment of Pohler's employment which could not be resumed until regular working hours the next day. That they constituted a deviation therefrom may be conceded. And if injury had resulted between the time Pohler started to walk a block or two north to the hotel and the time he returned to such point after placing the phone call it may be conceded without deciding such injury would not have arisen in the course of employment. But when Pohler in returning to the bunk car reached the place where he had turned aside from his employment to go to the hotel the deviation was ended and he resumed his employment. There was a substantial interval of both time and distance after such resumption before Pohler was injured on the direct route back to the bunk car.

Pohler was serving his employer as fully in returning to the bunk car following his interview with Hettle after placing the phone call as if he had returned without so doing or as if he had lived to resume his regular work the following day. So far as appears, it was wholly immaterial to the employer that the trip back to the bunk car was delayed by the attempted phone call. Pohler's deviation from his employment does not differ...