Reed v. Russell

• Decision Date: 27 June 1946
• Docket Number: 7280
• Citation: 172 P.2d 853,67 Idaho 84
• Parties: REED v. RUSSELL et al
• Court: Idaho Supreme Court

172 P.2d 853

67 Idaho 84

REED v. RUSSELL et al

No. 7280

Supreme Court of Idaho

June 27, 1946

On Rehearing Sept. 11, 1946.

On Rehearing September 11, 1946.

Appeal from Industrial Accident Board.

Affirmed.

Ralph S. Nelson, W. F. McNaughton, and William S. Lee, all of Coeur d'Alene, for appellants.

Where the evidence did not show that at the time of his injury an employee was doing an act connected with or incidental to his employment, his injury did not arise out of and in the course of his employment. Walker v. Hyde, 43 Idaho 625, 253 P. 1104; State v. Clearwater Timber Co., 47 Idaho 295, 274 P. 802, 66 A.L.R. 1396; Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927; Vaughn v Robertson & Thomas, 54 Idaho 138, 29 P.2d 756.

An accident occurring while an employee is upon a mission of his own does not arise out of and in the course of his employment. Parker v. Twin Falls County, 62 Idaho 291, 111 P.2d 865; Sullivan v. Industrial Commission, 79 Utah 317, 10 P.2d 924, 925.

During the time an employee, who has taken an unauthorized side trip, is returning to, but has not yet arrived in the service of his employer, an accident causing his injury does not arise out of and in the course of his employment. Parker v. Twin Falls County, supra; Hill v. Department of Labor and Industries, 173 Wash. 575, 24 P.2d 95; Carter v. Department of Labor and Industries, 183 Wash. 86, 48 P.2d 623; Edwards v. Industrial Commission, 87 Utah 127, 48 P.2d 459; Luke v. St. Paul Mercury Indemnity Co., 140 Neb. 557, 300 N.W. 577.

In cases of dual employment numerous decisions have held that the particular employment in which the employee is engaged at the time of the accident is determinative as to whether he is compensable. Crockett v. Industrial Accident Commission, 190 Cal. 583, 213 P. 969; Denny v. Department of Labor and Industries, 172 Wash. 631, 21 P.2d 275; George v. Industrial Accident Commission, 178 Cal. 733, 174 P. 653.

A person doing work of the kind ordinarily done on a farm is engaged in an agricultural pursuit. Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13; Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A.L.R. 200; Smythe v. Phoenix, 63 Idaho 585, 123 P.2d 1010; Batt v. Unemployment Compensation Division, 63 Idaho 572, 123 P.2d 1004, 139 A.L.R. 1157; Carstens Packing Company v. Industrial Accident Board, 63 Idaho 613, 123 P.2d 1001; Idaho S.L.1945, c. 203, 43-2311 (j).

Paul C. Keeton and Paul W. Hyatt, both of Lewiston, for respondent.

The question of whether a worker suffers an accident arising out of and in the course of his employment is determined by the time, place and all of the circumstances surrounding the services being given to the employer by the workman. Dameron v. Yellowstone Trail Garage, 54 Idaho 646, 34 P.2d 417; Totton v. Long Lake Lumber Co., 61 Idaho 74, 97 P.2d 596; Stockley v. School Dist. No. 1, 231 Mich. 523, 204 N.W. 715; Scrivner v. Franklin School Dist. No. 2, 50 Idaho 77, 78, 293 P. 666; Stakonis v. United Advertising Co., 110 Conn. 384, 148 A. 334; Stover v. Washington County, 63 Idaho 145, 118 P.2d 63; Christie v. Robinson Construction Co., 59 Idaho 58, 81 P.2d 65.

Where the evidence shows that an employee is on a mission for his employer and suffers an accident en route, it arises out of and in the course of his employment. Kelling v. Froemming Bros., 287 Pa. 471, 135 A. 129; Wineland v. Taylor, 59 Idaho 401, 83 P.2d 988; England v. Fairview School Dist., 58 Idaho 633, 77 P.2d 655.

An occupation or pursuit as a whole is the controlling factor in determining whether an employee is engaged as a farm laborer or in "agricultural pursuit" within the meaning of the Workmen's Compensation Law, I.C.A. § 43-904; Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13; Mulanix v. Falen, 64 Idaho 293, 130 P.2d 866; Freeman v. State Industrial Accident Commission, 116 Or. 448, 241 P. 385; Peterson v. Industrial Commission, 315 Ill. 199, 146 N.E. 146; Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960.

Work done under some conditions may be an agricultural pursuit while the same work done under other conditions and circumstances may be industrial labor, it being necessary to decide each case on the particular facts involved, and by applying the pertinent general rules, place it in one category or the other. O. L. Shafter Estate Co. v. Industrial Accident Commission, 175 Cal. 522, 166 P. 24; Klein v. McCleary, 154 Minn. 498, 192 N.W. 106; Carstens Packing Co. v. Industrial Accident Board, 63 Idaho 613, 123 P.2d 1001; Smythe v. Phoenix, 63 Idaho 585, 123 P.2d 1010; Gloubitz v. Smeed Bros., 53 Idaho 7, 21 P.2d 78.

Givens, Justice. Ailshie, C. J., and Holden and Miller, JJ., concur. Budge, J., dissents.

OPINION

Givens, Justice.

Steve Russell, respondent-employer, owns and operates a sawmill approximately five miles northeast of Weippe towards Pierce, and a quarter of a mile or so north of his mill a farm where he keeps livestock consisting of cattle, horses and mules -- the latter used to pack camping and hunting parties into the adjacent mountains and game areas, and the mules also in skidding logs.

James R. Reed, deceased, was first employed by Russell to work at the mill and later -- prior to the fatal accident -- ostensibly relegated to agricultural employment on a $ 200-a-month-wage basis. Russell had not elected to carry workmen's compensation insurance on his farming activities.

The morning of July 14, 1945, Russell's foreman, Harvey Wilson, residing in Weippe near deceased, requested him to run the trimmer at the mill in the absence of the regular employee performing that service. Deceased assented, but when in Wilson's automobile, they arrived at the mill, the regular operator of the trimmer had reported, and deceased stated he was not hired to work at the mill as then further requested by Wilson, and indicated he had to haul hay for the mules. He had previously told his wife he was going to get hay that morning for the horses. At about 10 o'clock, with his employer's truck, he delivered a load of lumber at Weippe. He thereupon met one Chet Applington, an independent logging-contractor, and after visiting a beer parlor, Applington's truck having previously broken down, they drove to his lumber camp east of Weippe in the truck deceased had and brought back some of Applington's employees. He and Applington then drove in the same truck to Pierce and had dinner at about 2 o'clock p. m. About 3:30 p. m. they started for Weippe in the same truck. The hay to be hauled was evidently at the farm of Russell's father, some ten or twelve miles westward of Weippe. Between Pierce and Weippe and going in the direction of this hay ranch, the truck turned over and Reed was killed about 4 or 4:30 in the afternoon.

His widow and minor children sought and secured compensation.

The employer and insurance carrier contend deceased was not engaged in any service for his employer at the time of the accident, and if he were, it was agricultural; i. e. not covered or compensable.

The Board found in substance that deceased, though at the time of the accident going for the load of hay, was overall in the employer's covered operations, i. e. the operation of the mill and camps and that the care and keep of the livestock were principally and usually in connection with his packing operations, the mules being used in both, i. e. to pack and to skid logs.

Where the employer is engaged in more than one occupation or business, one covered by workmen's compensation...