State Road Commission v. Industrial Commission of Utah

• Decision Date: 18 May 1920
• Docket Number: 3476
• Citation: 56 Utah 252,190 P. 544
• Court: Utah Supreme Court
• Parties: STATE ROAD COMMISSION v. INDUSTRIAL COMMISSION OF UTAH

190 P. 544

56 Utah 252

STATE ROAD COMMISSION v. INDUSTRIAL COMMISSION OF UTAH

No. 3476

Supreme Court of Utah

May 18, 1920

Proceedings under Workmen's Compensation Act for compensation for death of J. C. Johnson, opposed by the State Road Commission, employer. Award for claimant by the Industrial Commission, and employer brings certiorari.

AWARD ANNULLED, with directions.

Allen T. Sanford, of Salt Lake City, for plaintiff.

Dan B Shields, Atty. Gen., and Jas. H. Wolfe, O. C. Dalby, H. Van Dam, Jr., and D. M. Draper, Asst. Attys. Gen., for defendant.

THURMAN J. CORFMAN, C. J. and WEBER, J., FRICK J., concurring. GIDEON, J., concurring in part.

OPINION

THURMAN, J.

This case is before us on a writ of certiorari to review the proceedings of the defendant commission in the matter of an award to the dependents of one J. C. Johnson, deceased.

The findings and conclusions of the defendant are, in substance as follows:

"That Joseph Clarence Johnson was employed by the State Road Commissioner, beginning in the month of February, 1919, and continuing until the 4th day of September, 1919, when he was dragging a portion of the state highway, when a thunder storm arose, and he left his team near a fence, and started toward a cabin in an adjoining field for shelter, and at a point about 150 feet distant from the team, and before reaching the cabin, he was struck by lightning and instantly killed. It was the duty of said Joseph Clarence Johnson, under his employment, to drag the state road after rains and at such other time as he was ordered so to do by his superior, and the payroll of the State Road Commission shows that his wages were three dollars per day when he worked, and that he put in the following time: February, six days four hours, nineteen dollars and fifty cents; March, ten days, thirty dollars; April, three days, nine dollars; May, two days, six dollars; August, six days four hours, nineteen dollars and sixty cents; total earned, eighty-four dollars. That decedent left surviving, as dependents, his widow, Harriet Elizabeth Johnson, together with Clarence W. Johnson, Theron D. Johnson, and Claire Elizabeth Johnson, minors, and that the widow and applicant expended the sum of ninety-three dollars and fourteen cents for funeral expenses. That from the guardianship proceedings in the district court of Emery county, state of Utah, it appears that the widow, Harriet Elizabeth Johnson, was appointed guardian for the said minors, and as such was authorized to make election to take compensation in behalf of the minors. That in the work of the State Road Commission, of constructing and maintaining roads, the customary time of employment is five and one-half days per week, except as to the class of employes similar to decedent, whose duty it is to drag roads after storms, and that as to such employes their work comes only as would be required, as above stated.

"From the foregoing facts the commission concludes that the decedent came to his death as a result of an injury received by an accident arising out of or in the course of his employment, and that the dependents are entitled to compensation upon the basis of an average weekly wage of seventeen dollars and thirty cents."

Plaintiff contends the evidence is insufficient to sustain the finding that deceased was seeking shelter at the time he was killed. The evidence tends to show that the deceased was employed by plaintiff in January, 1919, to drag a portion of the state road in Emery county; that his employment continued intermittently until September 4 of the same year, when he was instantly killed by a stroke of lightning. No one saw the accident, but his body was discovered shortly afterwards in a field adjacent to the road on which he had been working. The body of decreased was eight or nine rods from the road, and there is no controversy as to the cause of his death. The field in which the body was found was occupied by deceased in his lifetime, and contained an old house several rods distant from the road. The body of deceased was found between the road and the house. As to how the deceased came to be at that point is entirely circumstantial. In his work he had been driving two span of horses attached to a drag. The horses and drag were found near the road, several road removed from where the deceased had evidently left them, and the doubletree to which they were attached was broken. The evidence also shows that at the time of his death there was in that vicinity considerable thunder and lightning, with some rain, and manifestations of a heavier storm.

The circumstances above detailed are amply sufficient to justify the finding that the deceased was seeking shelter at the time of his death. The question arises, "was seeking shelter," under such circumstances, such a departure from his work as to justify a conclusion that the accident did not arise in the course of his employment? Upon this question the defendant calls our attention to a paragraph from a standard author which seems to be in point:

"It cannot be said that the employment is broken by mere intervals of leisure such as those taken for a meal. If an accident happened at such a time there would be no break in the employment, even though the workman is paid by the hour for the time he is actually at work, especially where the accident occurs on the employer's premises, or about his property, unless the workman is doing something wholly foreign to his employment. Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen's Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comfort or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshment, food, or fresh air, or to rest in the shade." Honnold, Work Comp. p. 379 et seq.

See also, Vandoren, Work. Comp. 40, 41.

Plaintiff also insists that the accident causing the death of deceased was the "act of God," and not an accident within the meaning of the Industrial Act. The contention is that an "Act of God" is by implication excluded. Comp. Laws 1917, section 3112, as amended in Sess. Laws 1919, subd. 5, at page 157, is relied on. It reads as follows:

"The words 'personal injury by accident arising out of or in the course of employment' shall include an injury caused by the willful act of a third person directed against an employe because of his employment. They shall not include a disease except as it shall result from the injury."

Plaintiff's rule of construction, as applied to the language quoted, is a two-edged sword. The Legislature, while engaged in excluding certain things from the category of accidents, ought to have excluded the "act of God," if such was its intention. It expressly excluded diseases not resulting from the injury. Expressio unius, etc.

We not only feel justified in sustaining the finding that deceased was seeking shelter when the accident occurred, but likewise the legal conclusion that the accident occurred in the course of his employment and was one for which compensation should be allowed. We are of the opinion, however, that the accident did not arise out of the employment for the reason there does not appear to be any causal connection. This, however, in view of our present law, is immaterial. The insurer is liable whether the accident arose out of the employment or whether it arose in the course thereof. Comp. Laws 1917, section 3113, as amended by Sess. Laws 1919, page 158. We conclude therefore, that the deceased came to his death as the result of an accident received in the course of his employment, and that his dependents are entitled to compensation for the loss as provided by law.

The amount of compensation to be allowed is the difficult feature of the case. From the facts found the defendant reached the conclusion that the dependents were entitled to compensation upon the basis of an average weekly wage of seventeen dollars and thirty cents, and accordingly made an award of sixty per cent. of that amount, or ten dollars and thirty-eight cents per week for a period of 312 weeks, not to exceed in all the sum of three thousand two hundred thirty-eight dollars and fifty six cents.

The method of computation adopted by the defendant to ascertain the average weekly wage was to first ascertain the annual earnings, and divide that by fifty-two, the number of weeks in a year. For this purpose 300 was assumed to be the number of working days in the year. This multiplied by three dollars, the daily wage, amounted to $ 900, which sum, divided by fifty-two, produced seventeen dollars and thirty cents as the average weekly wage. The question is, does the statute by which we are controlled justify such method of computation in the instant case? The findings show that the employment of deceased was intermittent; that the nature of the employment was such that he did not and could not have employment for 300 days in the year, either approximately or substantially. The findings themselves state the actual number of days the deceased was employed, the nature of the employment, and the conditions incident thereto. The number of days so found must have been all that was required in the employment. The total number of days of actual employment, according to the findings, was twenty-eight, and the aggregate earnings during a period of seven months, at three...