Potter v. Realty Trust Co.

• Decision Date: 05 April 1939
• Docket Number: 6581
• Citation: 90 P.2d 699,60 Idaho 281
• Parties: DONALD C. POTTER, Employee-respondent, v. REALTY TRUST COMPANY, Employer, and NORTHWEST INDEMNITY EXCHANGE, Appellants, B. P. O. E., NAMPA LODGE No. 1389, Employer, and STATE INSURANCE FUND, Surety, Defendants
• Court: Idaho Supreme Court

90 P.2d 699

60 Idaho 281

DONALD C. POTTER, Employee-respondent, v. REALTY TRUST COMPANY, Employer, and NORTHWEST INDEMNITY EXCHANGE, Appellants, B. P. O. E., NAMPA LODGE No. 1389, Employer, and STATE INSURANCE FUND, Surety, Defendants

No. 6581

Supreme Court of Idaho

April 5, 1939

WORKMEN'S COMPENSATION-INTOXICATION-EVIDENCE-INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT-VIOLATION OF MUNICIPAL ORDINANCE-APPEAL-REVIEW OF AWARD OF INDUSTRIAL ACCIDENT BOARD-CONCURRENT LIABILITY OF TWO EMPLOYERS.

1.In compensation proceeding to recover an award for injuries sustained by employee in automobile accident, where police officer testified that he thought at the time that employee had odor of liquor on him but would not swear thereto exclusion of officer's written statement to police chief following accident, wherein it was stated that employee had been drinking, was error, but not prejudicial.(I. C. A sec. 43-1002.)

2.In compensation proceeding, burden of proving that employee was intoxicated at time of injury is upon employer.(I. C. A sec. 43-1002.)

3.In compensation proceeding to recover for injuries sustained by employee in automobile accident, evidence of officer's written statement to police chief after accident that employee had been drinking would not have been sufficient to prove intoxication.(I. C. A., sec. 43-1002.)

4.An injury to be compensable must have occurred "in the course of employment," quoted phrase meaning while injured in the service of the master and not being synonymous with "during the period covered by actual employment."

5.Where employee, to avoid collision with oncoming automobile permitted such automobile to pass on employee's right and employee's automobile collided with tree on left side of street, evidence was sufficient to excuse employee's violation of traffic ordinance prohibiting driving on wrong side of street, and hence denial of compensation award for violation of ordinance would not be warranted.

6.As respects employee's right to compensation, proof of violation of traffic ordinance at time of injury would be rebuttable by employee.

7.Where Supreme Court after considering the record is unable to say that there is no substantial evidence to support an award by the Industrial Accident Board, the order of the board will be affirmed.(Const., art. 5, as amended, Sess. Laws, 1937, p. 498.)

8.Evidence that compensation claimant who was employed as a salesman by a realty company, and also as a secretary of a fraternal lodge, at time of automobile accident, was on his way to realty company's office where he kept on deposit the lodge funds, for the purpose of depositing funds that he had collected, that he intended after making such deposit to proceed on to the post office, and secure a letter for the realty company, and that when the accident occurred, he was on the way which he would have used in going to discharge either of his duties, sustained an award imposing concurrent liability against both employers on ground that the claimant's injuries "arose out of and in course of employment," for both employers.

APPEAL from award by Industrial Accident Board.From an order granting award to plaintiff-employee, against defendants(B. P. O. E., Nampa LodgeNo. 1389, and its surety, State Insurance Fund, and Realty Trust Company and its surety, Northwest Indemnity Exchange), Realty Trust Company and its surety, Northwest Indemnity Exchange, appeal.Affirmed.

Order affirmed.Costs awarded to respondent.

Ralph S. Nelson and J. R. Smead for Appellants.

Respondent was not acting in the course of his employment by appellant company at the time of his injury.(Hartford Acc. etc. Co. v. Industrial Acc. Com., (Cal. App.)256 P. 873;Edmonds v. Industrial Com., 350 Ill. 197, 183 N.E. 12.)

A divided award respectively against two different and disassociated employers is proper only in case the common employee is acting for both employers in their respective businesses at the time of his injury.(Press Publishing Co. v. Industrial Acc. Com.,190 Cal. 114, 210 P. 820.)

Where an employee is injured as a result of his own negligence and in doing that which is not calculated to accomplish any purpose for his employer, he is not entitled to compensation.(Morse's Case, 270 Mass. 276, 170 N.E. 60;Carlstrom's Case, 264 Mass. 493, 162 N.E. 893;Sichterman v. Kent Storage Co.,217 Mich. 364, 186 N.W. 498, 20 A. L. R. 309.)

The same is true when the injury occurs as a result of an unlawful act or acts on the part of the employee.(Shoffler v. Lehigh Valley Coal Co.,290 Pa. 480, 139 A. 192, 193;Bugh v. Employers' Reinsurance Corp.,63 F.2d 36;Gima v. Hudson Coal Co.,106 Pa. Super. 288, 161 A. 903;Aff'd310 Pa. 480, 165 A. 850;Beshenick v. Pittsburgh etc. Corp., 110 Pa. Super. 156, 167 A. 416.)

Geo. H. van de Steeg, for Respondent.

The record shows that claimant was injured while proceeding to perform a duty to appellant which he was authorized and directed to discharge in furtherance of appellant's business, not his own, and while proceeding reasonably to its discharge.(Spero v. Hengany & Draper Co.,256 Mich. 403, 240 N.W. 21;Scrivner v. Franklin School District No. 2,50 Idaho 77, 293 P. 666;Logue v. Independent School District No. 33, 53 Idaho 44, 21 P.2d 534.)

The record is amply sufficient to sustain the finding of the board that claimant was not intoxicated at time of his injury.The burden of proving intoxication is upon the appellant, and there is not sufficient evidence in the record that would justify a finding of intoxication.(I. C. A., sec. 43-1022.)

If the act which resulted in or caused claimant's injuries was within the sphere of his employment, the mere fact that he might have been negligent, or exercised poor judgment, or even violated a statute or an ordinance at the time, will not defeat his right to compensation.(In re Stewart,49 Idaho 557, 290 P. 209, 23 A. L. R. 1163(note).)

AILSHIE, C. J. Givens, Morgan and Holden, JJ., concur.Budge, dissents.

OPINION

AILSHIE, C. J.

Respondent, vice-president of the Realty Trust Company, had been employed about nine years as a salesman and solicitor for the company and for two years held the position of secretary of the Elks LodgeNo. 1389 of Nampa.He worked on a commission basis for the trust company and his average income "was over $ 50 a week"(compensation for year preceding accident was $ 2,630.25).His salary from the Elks Lodge was $ 25 a month.He was employed by the Realty Trust Company"for twenty-four hours a day" and "seven days" a week, "whenever the best interests of his employer required it."The employer paid for the license of his car and also "for the gas and oil used therein, and for its repair and up-keep."Respondent's father(president of the trust company) testified as to the nature of the son's duties for the company; that he had "been doing about the whole thing.He is salesman, solicitor and the executive duties of a little real estate business don't amount to much."That he and his son own the stock of the company and the secretary has two or three shares "to qualify and sign policies."He and his son "set up a salary and then allow him [respondent] about 25% and commission at end of year."

In the evening of Sunday, December 26, 1937, some time after ten o'clock, respondent was handed some membership dues at the Elks Club and walked over to the Realty Trust Company's office (where he kept the books) in order to make a record of the dues and deposit the money in a safe.Having forgotten his keys, he drove home to get them.Guests were there at the time who remained until about twelve-thirty at night or later.After the guests left respondent drove his car out of the garage and east on 9th Street.At the intersection he turned to the right to avoid colliding with an automobile traveling south on Eleventh Avenue and turning to the left on 9th Street.Before he had completed the turn, a second car, directly behind the first car on Eleventh Avenue and apparently attempting to pass it, approached the intersection "at an excessive rate of speed."Respondent"continued on south on Eleventh Avenue and on the left hand side of the street in order to permit this second car to pass" on his right.He testified that it was impossible for him to stop at the intersection as he"would have been rammed into by the other car because it was going at too great a speed" for him "to do other than to get out of its way."Respondent had "no recollection what speed"he was going when his car "hit the tree."He was familiar with the city traffic laws, etc.While looking to the right over his shoulder to see the other car, respondent's car struck a tree in the parking on his left approximately 75 feet south of the intersection; the front of his car was crushed, the steering wheel and windshield broken and he received serious injuries as a result of the accident.From December 27th to February 15th he was totally disabled for work and partially disabled from the latter date to February 25th, and has a permanent disability consisting of the loss by enucleation of one eye.He has incurred expenses in the sum of $ 737.50 for medical attendance, hospital and other services.

The cause was heard before the Industrial Accident Board and an award was granted respondent against the Elks Lodge and its surety and Realty Trust Company and its surety, for pro rata reimbursement for expenses incurred and compensation for total temporary disability and permanent partial disability.From the award and order of the board, the Trust Company and its surety have appealed.

At the trial an attempt was made by appellant to prove that claimant was intoxicated when the accident occurred.There is evidence to the effect that h...