Shoemaker v. Snow Crop Marketers Division of Clinton Foods

• Decision Date: 16 June 1953
• Docket Number: No. 7969,7969
• Citation: Shoemaker v. Snow Crop Marketers Division of Clinton Foods, 258 P.2d 760, 74 Idaho 151 (Idaho 1953)
• Parties: SHOEMAKER v. SNOW CROP MARKETERS DIVISION OF CLINTON FOODS, Inc. et al.
• Court: Idaho Supreme Court

Page 760

258 P.2d 760

74 Idaho 151

SHOEMAKER v. SNOW CROP MARKETERS DIVISION OF CLINTON FOODS, Inc. et al.

No. 7969.

Supreme Court of Idaho.

June 16, 1953.

Clements & Clements, Lewiston, for appellant.

Leslie T. McCarthy, Lewiston, for respondent.

GIVENS, Justice.

The Mark Means Company and Snow Crop Marketers Division of Clinton Foods, Inc., carried on their respective and separate businesses in adjoining buildings in Lewiston. The latter Company processed and sold food.

The employees of one or the other Company, when not employed by their main employer, worked for the other. Claimant was employed regularly as warehouse foreman by the Means Company. July 6, 1952 was a rush period for the Snow Crop Company and the Means Company not being open on that day, claimant was employed by the Snow Crop Company on the tray line and his period of payment included half an hour for lunch at noon.

Claimant had a key to the Means warehouse wherein he had left his lunch pail. He loaned this key with a key to his truck (both on the same key ring) to a Mr. Storey, who desired to use the truck for purposes of his own.

Mr. Taylor, foreman or supervisor of the freezing, casing, storage warehouse and shipping and receiving for the Snow Crop Company, thus testified as to claimant's activities at the time of the accident:

'A. * * *, in rush periods we staggered the line back and forth, (for the lunch hour) whenever there was a possible break in the production line of peas and we can let them go for a few minutes.

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'Q. And during that few minutes, these employees of yours could go where they wanted to get their lunch and the idea was to get back as soon as they could? A. Yes.

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* * * 'Q. You were just interested in when they could get back? A. Yes.

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'A. We didn't have regular twenty-minute lunch periods. We have a half hour or an hour, or possibly forty-five minutes,--anything less than half an hour is paid by the company.

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'Q. From the time he (claimant) left there until he came back he was on no company business? A. Other than eating.

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'A. Well we needed his work and we try to see that they do have food so that they are able to do the work.'

Claimant testified Mr. Taylor told him to go to lunch between 12:45 and one o'clock and that he intended to be gone--'Long enough to grab my sandwich in the lunch bucket and candy bar and go back.' He was given no order by Snow Crop other than to get his lunch and get back to work as soon as he could.

Mr. Storey had not returned the key ring and claimant, in order to enter the warehouse and get his lunch as quickly as possible, climbed up on the roof of the Means Company warehouse and through a window to an elevator shaft and was proceeding hand over hand on a board across the elevator shaft when the board gave way and he fell about twenty feet to the bottom of the shaft, severely injuring himself.

The connection of the Means Company with the controversy is no longer involved and it has been dismissed from the action. The sole contention is between claimant and the Snow Crop Company and its Surety.

Claimant sought, and the Board granted him, compensation on the theory and finding the accident arose out of and in the course of his employment.

Appellant contends that claimant was, during his lunch period, not in the employ of the Snow Crop Company and the accident had no connection whatever with his employment and challenges several of the finding of the Board. Only two are essential: that claimant was under the direction of the Snow Crop Company on his way to lunch and was actually receiving wages from the Company during the lunch period and that the accident arose out of and in the course of his employment by the Company, with consequent liability of it and its surety.

In Western Pipe & Steel Co. of Cal. v. Industrial Accident Comm., 49 Cal.App.2d 108, 121 P.2d 35, at page 38, the Court considered a situation comparable to that herein and held as follows:

'* * *. When the employer pays the employee at an hourly rate during his meal hours, especially when those meals are taken during an overtime period, it seems to be, and is a reasonable inference, that by such an arrangement the employer has impliedly agreed that service will continue during such period.

'This is not a new or novel concept. The problem has frequently been presented in connection with cases where the employee's compensation covers the time he is going to or coming from work. In such situations the courts have quite uniformly held that injuries received while going to or from work are compensable. The problem is discussed in an annotation appearing in 87 A.L.R. 250 entitled: 'Right to compensation for injury while going to or from work as affected by fact that compensation covers the time involved or cost of transportation, or both.' It is there stated:

"It is a general though not invariable rule, so common as to require no citation of authority, that an injury sustained in going to or from work does not arise out of and in the course of the employment within the meaning of workmen's compensation acts.

"An exception to this rule, however, is generally recognized where the employee's compensation covers the time involved in going to or from his work, or an allowance is made for the cost of transportation.'

'Many cases are then discussed. Running through the cases is the thought that by agreeing to pay the employee from the time he leaves home until the time he returns, the employer has agreed that the employment shall be continuous during such period. The courts frequently emphasize that such rule has special application to cases where the employee is required to work extra hours. This thought was expressed by the United States Supreme Court in Voehl v. Indemnity Ins. Co., 288 U.S. 162, at page 169, 53 S.Ct. 380, 383, 77 L.Ed. 676, 87 A.L.R. 245, in the following language: 'While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service, and hence within the purview of the Compensation Act.''

This theory was followed further in Breland v. Traylor Engineering & Mfg. Co., 52 Cal.App.2d 415, 126 P.2d 455, and Bethlehem Steel Co. v. Industrial Accident Comm., 70 Cal.App.2d 382, 161 P.2d 59.

The Supreme Court of California expressly approved these holdings and the supporting proposition in California Casualty Indemnity Exchange v. Industrial Acc. Comm., 21 Cal.2d 751, 135 P.2d 158, and Kobe v. Industrial Accident Comm., 35 Cal.2d 33, 215 P.2d 736.

Our own Court has recognized, to some extent, the force and effect of the pay period as bringing a case within the orbit of employment and making the accident compensable, Colson v. Steele, 73 Idaho 348, 252 P.2d 1049, 1050, thus:

'* * *. After the expiration of the lunch period appellant's time belonged to and was being paid for by respondent, Steele. * * *'

Herein, the employee was paid throughout the lunch period.

Appellant cites in support of its contention, Taylor v. Binswanger & Co., 130 Va. 545, 107 S.E. 649. Therein compensation was denied a messenger boy injured on a street when going home during the noon hour for his lunch. The accident occurred during a pay period, but the employer had not directed him to hurry back. Therefore, it is distinguishable as the accident therein did not arise out of his employment. This distinction was clearly recognized in Honaker v. Feeney & Hartley, 140 Va. 1, 124 S.E. 220, at page 231, construing the Taylor case. So in Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336. The Taylor case was followed because no special occasion or instruction incidental to and in furtherance of the employment was present--the employee merely was going for his lunch.

Pillen v. Workmen's Comp. Board, 60 N.D. 465, 235 N.W. 354, applied the Taylor case, and incidentally Walker v. Hyde, 43 Idaho 625, 253 P. 1104, because therein likewise no special incident of employment was connected with the procurement of his lunch.

Staats v. Town of Vienna, 167 Va. 37, 187 S.E. 485, followed the Taylor case because, though the accident was during the lunch hour, it was not in a pay period.

Taylor v. Robertson Chevrolet Co., 177 Va. 289, 13 S.E.2d 326, at page 330, rejected the Taylor v. Binswanger case, supra, as not applicable on the same incident considered controlling herein, thus:

'On the day of his accident Taylor's duties kept him down town until the time for him to report at the warehouse was about at hand. In order for him to comply with this second assignment an early supper was necessary that he might hurry on. We have a simple case in which he was required by the defendant to go from one assignment to another. He had to eat somewhere, and his rights are not affected by the fact that he ate at home instead of in a restaurant. The detour to his home was too slight to be of moment.'

In Southern Surety Co. v. Galloway, 89 Okl. 45, 213 P. 850, cited by appellant, the employee about 11:00 a. m. left his plow, being used in grading a street, walked across the street to get bread from a bread wagon and was struck and injured by an automobile. The Court held the accident did not arise out of the employment. Nothing was said in the opinion as to whether the accident occurred during the employee's pay period nor as to being told to hasten back.

In Sapulpa Refining Co. v. State Indus. Comm., 91 Okl. 53, 215 P. 933, the Court expressly distinguished...