Salt Lake City v. Industrial Commission

• Decision Date: 03 May 1943
• Docket Number: 6462
• Citation: 137 P.2d 364,103 Utah 581
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. INDUSTRIAL COMMISSION et al

137 P.2d 364

103 Utah 581

SALT LAKE CITY v. INDUSTRIAL COMMISSION et al

No. 6462

Supreme Court of Utah

May 3, 1943

Rehearing denied July 28, 1943.

Original proceeding by Salt Lake City to review an award of the Industrial Commission of Utah granting workmen's compensation to Edren D. Erickson.

Award reversed.

Gerald Irvine, E. R. Christensen, and A. Pratt Kesler, all of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Harold E. Wallace and C. E Henderson, both of Salt Lake City, for defendants.

WOLFE Chief Justice. McDONOUGH, J., and WM. L. HOYT, District Judge, concur. LARSON, Justice, MOFFAT, Justice, dissenting. PRATT, J., on leave of absence.

OPINION

WOLFE, Chief Justice.

On September 17, 1941, Edren Erickson filed a claim with the Industrial Commission in which he alleged that he was injured on August 26, 1941, while employed as a truck helper by Salt Lake City Department of Streets and Public Improvement. He further alleged that the injury arose out of or in the course of this employment. The Commission made an award to Erickson and Salt Lake City appealed.

The employment by the city and the injury while at the place of his employment are admitted by the city. The only question raised by the appeal is: Did the injury arise out of or in the course of the employment? There is considerable conflict in the evidence relating to this issue.

Erickson testified that while he was working at the city garbage dump, L. T. Landram, a fellow employee and Erickson's immediate supervisor, remarked that he would like to have some of a load of screens that were being unloaded on the dump. Landren stated that he wanted the screens for his own personal use. Erickson asked "Shall I get some for you?" and Landren replied, "Yes." The applicant testified that he proceeded to the place where the screens had been dumped, picked up an armful and started to return to the truck on which he worked. At that time, Ames the assistant foreman in charge of the dump, objected to the taking of the screens. The applicant testified that Ames called him some disreputable name and a scuffle ensued. During the scuffle the applicant suffered a broken leg. According to the testimony of the applicant the altercation arose because of a dispute over the ownership of the screens. He testified that Ames stated "Those are mine."

On the other hand, Ames denied that he had any personal interest in the screens. He stated that rules had been posted and all employees, including the applicant, had been informed orally that they were not to take any salvage from the dump without the permission of the foreman or assistant foreman. Ames maintained that his only interest was the enforcement of this rule. Dyer, the general foreman, corroborated the testimony of Ames in regard to the fact that there were such established rules.

The applicant testified that he did not know of any rules which prohibited the taking of materials from the dump. He also testified that the foreman, Dyer, had given him permission to salvage any materials which were not taken by the salvage crew. It should, however, be noted at this point that the applicant was informed by the general foreman that he could take materials only after the salvage crew, which worked a night shift, had a chance to take what they wanted. He knew that these screens had just been brought to the dump and that the salvage crew had had no opportunity to take them.

The Commission found that Ames was the aggressor and that the altercation ensued when Ames, in his capacity of assistant foreman, attempted to enforce the rule. The Commission also made the following finding:

"The testimony of Ernest F. Ames [assistant foreman ] and particularly that of Gus Dyer, foreman in charge of the city dump, is to the effect that rules had been posted and all employees had been informed by word of mouth that they were not to take any salvage from the dump without permission from the foreman or assistant foreman. Mr. Ames further testified that he had no interest in the screens and did not claim they belonged to him, but merely tried to enforce the rules regarding the taking of salvage. * * * We are incline to believe the testimony of Mr. Dyer the foreman and Mr. Ames the assistant foreman with respect to the established rules and testimony of Mr. Ames that he was attempting to enforce one of the rules at the time the scuffle ensued. * * * It is quite apparent that Ames approached Erickson with the intent to force him to drop the screens."

This quoted so-called finding is more a narration of testimony than a finding but we must assume that when the Commission set out certain testimony it intended to find the fact in accordance with such testimony. But in the face of this assumption the finding is open to only two interpretations, under either of which the case must be reversed. First, it may be construed as a finding that Erickson had knowledge of the rule and was acting in willful violation of it. A finding that rules had been posted and that "all employees had been informed by word of mouth" appears to include a finding that Erickson had been so informed. The applicant contends that it makes no difference whether or not he knew he was violating the rule. In support of this contention he first relies on the fact that he violated the rule while complying with the request of his immediate superior. However, it appears that he knew that his immediate superior, Landram, wanted the screens for his own personal use and that it would in no way benefit the employer, the city. If we assume that he knew of the rule, he would be charged with notice that it was outside the scope of Landram's authority as supervisor to request him to violate it. Under these circumstances he is in no better position for having acted at Landram's request than he would have been had he acted entirely on his own behalf. See Ballman v. D'Arcy Spring Co., 221 Mich. 582, 192 N.W. 596; Pearce v. Industrial Comm., 299 Ill. 161, 132 N.E. 440, 18 A. L. R. 523, both of which involved injuries while the applicant was on an errand for his supervisor.

The applicant also relies on the holding in regard to rule breaking announced by this court in Twin Peaks Canning Co. v. Industrial Comm., 57 Utah 589, 196 P. 853, 20 A. L. R. 872. This court did state in that opinion that the breaking of the rule in that case went only to the question of negligence, and, since negligence is no bar in compensation cases, allowed recovery. It is true that the breaking of a rule under certain circumstances might relate only to the question of negligence or willful misconduct. See A. L. Randall Co. v. Industrial Comm., 305 Ill. 558, 137 N.E. 435 (employee instructed to take materials to another floor but ordered to wait for the elevator operator was injured while operating elevator himself); Nordyke & Marmon Co. v. Swift, 71 Ind.App. 176, 123 N.E. 449 (employee instructed to use dirty gasoline to wash floors was injured while trying to get clean gasoline); Blocton, Cahaba Coal Co. v. Campbell, 219 Ala. 529, 122 So. 806.

However, the breaking of a rule might also go to the question of whether or not the employee by his conduct departed from the course of his employment. As stated in Erdberg v. United Textile Print Works, 216 A.D. 574, 216 N.Y.S. 275, 276:

"The disobedience of an order may do no more than to establish a fault on the part of an injured employee. In that case the employee would not lose his right to compensation. The order, however, may go further. It may so restrict the activities of the employee that its violation would place him outside the sphere of his employment [if he is injured ], in which case compensation would not be payable. * * * [The employee ] is beyond the sphere of his employment if he is injured in the course of doing the thing forbidden." See also Ballman v. D'Arcy Spring Co., supra.

There are a number of cases which deny recovery even where the employee who violates the rule is attempting to perform a service for the benefit of his employer at the time of the injury. Kubes v. Hillman Coal & Coke Co. 96 Pa.Super. 340, Kitchen v. Hartranft, 130 Pa.Super. 459, 198 A. 479; Enfield v. Certain-Teed Products Co., 211 Iowa 1004, 233 N.W. 141; Hibberd v. Hughey, 110 Neb. 744, 194 N.W. 859; Fournier's Case, 120 Me. 236, 113 A. 270, 23 A. L. R. 1156. It is not, however, necessary to go so far in this case. If we construe the above-quoted finding as a finding that the applicant did have knowledge of the rule, then it would appear that he acted willfully in violation of it; that he violated it for reasons tantamount to being personal to himself; and that he engaged in an altercation while persisting in the violation of it. Under these circumstances there would have been a departure and the fact that the scuffle resulted over Ames' admonition that the applicant was to obey the rule would not make the altercation arise out of nor bring the applicant back into the course of his employment. Certainly if an employee during his tour of employment left his job and proceeded to use one of the company's machines for doing a substantial job of his own, I do not think we would say that he could recover if he were injured by the machine during such departure. A fortiori, if there were a distinct rule against employees using company machines during hours of their employment for their own purposes, we would not hold that compensation should be granted. How then could such an employee be said to be returned to his employment if he engages in an altercation with the foreman arising out of the admonishment by the latter during the time of and in reference to his departure for his own purposes? Hence if said finding is to be interpreted then the case must be...