Sater v. Home Lumber & Coal Company

• Decision Date: 14 May 1942
• Docket Number: 6942
• Citation: 126 P.2d 810,63 Idaho 776
• Court: Idaho Supreme Court
• Parties: CATHERINE R. SATER, surviving widow of John E. Sater, deceased, Appellant, v. HOME LUMBER & COAL COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

126 P.2d 810

63 Idaho 776

CATHERINE R. SATER, surviving widow of John E. Sater, deceased, Appellant, v. HOME LUMBER & COAL COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 6942

Supreme Court of Idaho

May 14, 1942

Rehearing denied June 24, 1942

WORKMEN'S COMPENSATION LAW-ACCIDENT ARISING OUT OF AND IN COURSE OF EMPLOYMENT-EMPLOYER'S REPORT OF ACCIDENT.

1. Where assistant manager of lumber company, who while making a motor trip with wife, turned off main highway for purpose of seeing prospective customer about construction of a house and was fatally injured when a rear tire blew out, accident "arose out of and in course of employment," so as to render assistant manager's death compensable. (I. C A. sec. 43-901 et seq.)

2. Where service of employer was a concurrent cause of trip which employee was taking at time of accident, employer would be liable for compensation for injuries sustained by employee on the trip. (I. C. A. sec., 43-901 et seq.)

3. On appeal from order of Industrial Accident Board denying compensation, employer's report of the accident could be considered, though it was not formally offered in evidence at hearing before the Board. (I. C. A. sec. 43-1801.)

Rehearing denied June 24, 1942.

APPEAL from the Industrial Accident Board.

Proceeding under the Workmen's Compensation Act by Catherine R Sater, claimant, opposed by Home Lumber and Coal Company, employer, and State Insurance Fund, surety. From order denying compensation, claimant appeals. Reversed and remanded with directions.

Reversed and remanded with direction. Costs awarded appellant.

George Donart and E. B. Smith, for Appellant.

A report of an employer is prima facie evidence that the accident and injury occurred as reported and is sufficient to support a finding that the injury arose out of and in the course of employment. (Reck v. Whittlesberger (Mich.) 148 N.W. 247; Stockley v. School Dist. No. 1 of Portage Tp. (Mich.) 204 N.W. 715; Stover v. Washington County, Decided S.Ct. of Idaho October 15, 1941; I. C. A. 43-1801.)

Where an employee is in the performance of some substantial mission for his employer growing out of the employment, and such a mission is shown to be the major factor in the employee's movement and not merely incidental thereto, an accidental personal injury sustained by the workman during the performance of such mission arises out of and in the course of his employment. (In re Christie, 59 Idaho 58; 81 P.2d 65; Wineland v. Taylor, 59 Idaho 401; 83 P.2d 988; Parker v. Twin Falls County (Idaho) 111 P.2d 865; Dameron v. Yellowstone Trail Garage, 54 Idaho 646; 34 P.2d 417; England v. Fairview Sch. Dist. No. 16 of Power Co. (Idaho) 58 Idaho 633; 77 P.2d 655.)

"If the service of the master was a concurrent cause of the trip, which the servant was taking at the time of the accident, he master would be liable for compensation." (In re Christie, 59 Idaho 58; 81 P.2d 65, 72; Wineland v. Taylor, 59 Idaho 401, 406; 83 P.2d 988; 990; Parker v. Twin Falls County, (Idaho) 111 P.2d 865; Standard Oil Co. v. Smith (Wyo.) 111 P.2d 132.)

Frank L. Benson, for Respondents.

Where an employee, while on a vacation, meets with a personal injury by accident, while riding on a public highway in his own automobile, over which the employer has no direction or control and on premises neither belonging to nor under the domination of the employer, such accident does not arise out of and in the course of his employment. (I. C. A. sec. 43-1001 (as amended 1939 Laws, c. 161, sec. 1); Palmer v. J. A. Terteling & Sons, 52 Idaho 170, 178, 179, 16 P.2d 221; Stewart v. St. Joseph Lead Co., et al., 49 Idaho 171, 286 P. 297; State ex rel. Gallet, State Auditor, v. Clearwater Timber Company, et al., 47 Idaho 295, 305, 274 P. 802, 805.)

HOLDEN, J. Budge, J., and Winstead, D. J., concur. Givens, C. J., and Ailshie, J. dissent. Morgan, J., did not sit with the court at the hearing nor participate in the decision, and Winstead, D. J., sit in his stead.

OPINION

HOLDEN, J.

August 9, 1940, and for about 12 years prior thereto John E. Sater was employed by the Home Lumber and Coal Company at Weiser, Idaho, as its assistant manager. It was his duty as assistant manager to solicit business and make collections, and for many years prior to that date Floyd Dillon and his wife Margaret Dillon resided at Weiser. In the years 1939 and 1940 the Dillons planned on building a home at Weiser. In the discharge of his duties, Assistant Manager Sater submitted plans and specifications for the contemplated residence and figured the costs of construction with the Dillons, and the Dillons actually excavated a cellar, but, on selling the lot, abandoned further construction. The Dillons did not, however, abandon the intention to build a home, and to that end Mrs. Dillon made new sketches and again and upon several occasions discussed the matter of the costs of building materials with Mr. Sater.

Saturday, August 3, 1940, the assistant manager, on full salary, accompanied by his wife, claimant herein, left Weiser by automobile on a trip through Southeastern Idaho and Yellowstone Park. He stopped at Nampa, where he attempted the collection of a company account from a Mr. Carson. They also stopped at Boise where Mr. Sater stated he was going to "try to collect a bill" for the company. From Boise Sater drove to Castleford, arriving there Sunday, August 4, 1940, where they visited with relatives named Bryant. Upon leaving the Bryants the Saters requested Mrs. Bryant "should there come any mail here send it to Idaho Falls." From Castleford they drove through Burley, Pocatello, Idaho Falls and Yellowstone Park and then back as far as Idaho Falls.

Dillon, employed by the Fish and Game Department was ordered temporarily to Mackay for duty, and reported there August 7, 1940, Mrs. Dillon accompanying him, but intending to return to Weiser. A week or two before leaving Weiser the Dillons conferred with Mr. Sater about the construction of a residence and at about that time the Saters indicated to the Dillons their intention of taking the above mentioned trip, and that they intended to stop at Castleford. Just before leaving Weiser for Mackay, Mrs. Dillon ascertained the Saters had gone. She thereupon wrote a letter to the Saters addressed in care of Mrs. Emery Bryant at Castleford, stating in effect that they, the Dillons, had decided to build at Weiser, and made inquiry concerning the figures and suggested that they (the Saters) come back through Mackay and see them (the Dillons). Mrs. Dillon told her husband she had written the Saters and that she expected they would come by and see them in Mackay. Mrs. Bryant forwarded Mrs. Dillon's letter to the Saters to Idaho Falls, which the Saters received upon their return to Idaho Falls from the Park. At Blackfoot Sater left the main highway to drive to Mackay for the purpose of seeing the Dillons. As the Saters were driving through Arco, Dillon, who had come down to Arco from Mackay the previous day, recognized the Sater car as it drove past, and got into his own car and overtook the Saters. Mr. Dillon testified that after the usual greetings were had:

"He (meaning Sater) told me he was going to Mackay * * * to see 'you folks' (meaning the Dillons) * * * then he asked me what we had decided on in our building plans, * * * I told him we still wanted to build in Weiser and that I had no intention of making my home in Mackay. * * * The house and the plans were again discussed. * * * I told him we had decided to build a smaller house and not quite as elaborately finished; that we wanted to cut down on the expense and he (meaning Sater) said 'I see where you are right and I can save you money on that deal.'"

During the course of the above conversation Dillon informed the Saters that his wife was in Mackay and that "I (Dillon) told them Mrs. Dillon would be at home in Weiser in the near future and what she did was O. K. to me (referring to the building of a house in Weiser at that time) * * * Mrs. Dillon would be home * * * back in Weiser * * * around two weeks * * * she was the boss on the building. * * * You go ahead and figure with her and whatever my wife does is all right with me."

Following the conversation between Dillon and the Saters, Sater, instead of driving on to Mackay as he had intended to do, took the shortest and most direct route to Weiser (which route took the Saters through the Craters of the Moon). The road was "under construction, loose gravel, grading and some detours." After the Saters had driven through the Craters of the Moon, and when they had reached a point about eight miles from Carey, a rear tire blew out causing the car to pass out of control and go down over an embankment. Mr. Sater sustained fatal injuries, dying shortly after the accident.

The accident and death of the assistant manager was duly reported. No agreement for compensation having been reached, the widow filed a claim for compensation November 4, 1940. Later, December 23, 1940, she filed an application for hearing, pursuant to which the matter was heard May 6, 1941. May 17, 1941, the Board found:

"That the accident heretofore described and which was received by the said John E. Sater, on the 9th day of August, 1940, did not arise out of and in the course of the deceased's employment with the defendant, Home Lumber and Coal Company."

The Board then entered an order "That the claim for compensation of Catherine R. Sater against the defendants, Home Lumber and Coal Company, employer, and State Insurance Fund, surety, be and the same hereby is denied and her application dismissed."

The appeal to this court is from that order.

The controlling question presented on this appeal is as to whether the accident in question...