Stewart v. St. Joseph Lead Co., 5391

• Decision Date: 02 April 1930
• Docket Number: 5391
• Citation: 49 Idaho 171,286 P. 927
• Parties: JAMES W. STEWART, Claimant and Respondent, v. ST. JOSEPH LEAD COMPANY, Employer and Appellant, and MARYLAND CASUALTY COMPANY, a Corporation, Surety and Appellant
• Court: Idaho Supreme Court

286 P. 927

49 Idaho 171

JAMES W. STEWART, Claimant and Respondent, v. ST. JOSEPH LEAD COMPANY, Employer and Appellant, and MARYLAND CASUALTY COMPANY, a Corporation, Surety and Appellant

No. 5391

Supreme Court of Idaho

April 2, 1930

WORKMEN'S COMPENSATION ACT-INJURY NOT WITHIN SCOPE OF EMPLOYMENT.

In proceedings by superintendent of mining company, residing with family in house furnished by employer on premises, for compensation for injury to thumb while splitting wood to be used in preparing evening meal, evidence held to show that splitting of wood did not constitute part of claimant's employment, though mining company furnished claimant with wood, water, lights and dwelling, "cutting" of firewood including chopping, splitting, sawing, whittling breaking or any other mode of adaptation to the end desired.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Dana E. Brinck, Judge.

James W. Stewart was refused compensation against the St. Joseph Lead Company. He appealed to the district court, which reversed the action of the Industrial Accident Board granting him compensation. Reversed.

Judgment reversed. Costs to appellants.

Chas M. Kahn, for Appellants.

Even though it may be said that Stewart was on the property of the St. Joseph Lead Company and was living thereon, and at this particular time was performing these domestic tasks by reason of his employment, this is not sufficient to make the accident a compensable injury. Another element is essential and that is that the accident happened through something connected with his employment.

This idea has been much stressed and dwelt upon in numerous decisions in workmen's compensation cases in this country. It was first enunciated in an English case, where we find this terse language:

"It is not enough for the applicant to say, 'the accident would not have happened if I had not been engaged in this employment, or if I had not been in that particular place.' The applicant must go farther, and must say, 'the accident arose because of something I was doing in the course of my employment, or because I was exposed by the nature of my employment to some peculiar danger.'" (Craske v. Wigan, 2 Butterworth's Workmen's Comp. Cases (Eng.), p. 35.)

Richards & Haga, for Claimant and Respondent.

The accident and injury of James W. Stewart arose out of and in the course of his employment with the St. Joseph Lead Company, and the judgment of the district court awarding him compensation for this injury is correct and should be affirmed. (Re McNicol's Case, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306; Zeier v. Boise Transfer Co., 43 Idaho 549, 554, 254 P. 209; Novack v. Montgomery Ward & Co., 158 Minn. 495, 31 A. L. R., Ann., p. 1254, note 198 N.W. 290, 292; Ocean Accident & Guarantee Corp. v. Pallero, 66 Colo. 190, 180 P. 95; Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L. R. A. 1917E, 324, 326; McLaughlin v. Anderson, 4 Butterworth's Workmen's Comp. Cases (Eng.) 367.)

LEE, J. Budge, Varian and McNaughton, JJ., concur. Givens, C. J., dissents.

OPINION

LEE, J.

James W. Stewart, claimant, was by the Industrial Accident Board refused compensation prayed against his employer, appellant, St. Joseph Lead Company. He appealed to the district court where the board's action was reversed, and a judgment entered, awarding him a compensation stipulated by respective counsel as reasonable. From that judgment, the mining company and its surety, Maryland Casualty Company, appealed.

From the record, it appears that while employed as superintendent by appellant mining company, and residing with his family in a house furnished him by his employer, claimant accidentally severed his thumb below the distal joint while splitting wood, in order to prepare the evening meal. The issue turns upon the question, whether or not the splitting of this wood constituted a part of claimant's employment. The board concluded that it did not: the district court held that it did.

The facts as found by the board were determined solely from the testimony of claimant himself. With respect to his duties and his remuneration for the discharge thereof, under verbal contract with his employer, claimant testified:

"Q. And will you describe generally what your duties have been during the last seven years at that mine? A. Why, it was my duty to oversee all the work and be responsible for all supplies and work done and the electrical work, of course, the power plant, and that sort of stuff I had to take care of myself.

"Q. In general, what were the terms of your contract? A. I would say I was getting $ 210 a month and all expenses other than food and clothing.

"Q. And what supplies, if any, do they furnish you? A. Why, wood, water, lights and furnished house.

"Q. Do you care for all of the company's property which is there at the house and about the mine? A. Yes. . . .

"Q. Now, the wood which you were cutting, Mr. Stewart, were you cutting wood or splitting wood? A. Splitting wood.

"Q. To whom did the wood belong? A. It belonged to the St. Joe Lead Company.

"Q. You were preparing it for what use? A. For the use of the house. . . .

"Q. State whether or not it was the arrangement under your contract of employment with the St. Joseph Lead Company that you attended to the duty of cutting wood for the house as well as other domestic duties around the house? A. Yes."

Having testified on cross-examination that the company furnished the wood, the following colloquy ensued:

"Q. And was the wood originally cut from the company's property? A. Yes.

"Q. And it was stacked up for your use? A. Yes.

"Q. And it was in such lengths and widths so that it would require further treatment before it would go in the stove? A. Yes.

"Q. Now, as I understand your duties, you were general superintendent of the property? A. Yes."

On redirect examination he testified:

"Q. This wood had been sawed into stove-wood lengths, had it, Mr. Stewart? A. Yes.

"Q. And in order to use it in the cook-stove it was necessary to split it? A. Yes.

"Q. It could not be used for cooking purposes at all until it was split, could it, Mr. Stewart? A. No."

Under the undisputed facts, the mining company furnished claimant wood, water, lights and a dwelling. The wood was cut by the company into proper stove lengths and by it stacked for claimant's use. Now, did its duty end here or was it compelled to proceed further and split the wood already stacked? Claimant had testified that a part of his duty was to "cut" the wood; at no time did he testify that it was his duty to "split" it. Cutting and splitting are just ninety degrees apart. It is true that claimant invoked the element of necessity, declaring that without such splitting the wood so stacked would have been unavailable for his purposes. And he therefore concludes that the splitting was a part of his contract.

But the fact established is that the company only undertook to "furnish" him wood, a term that must be subjected to its reasonable and usual interpretation. Had the fuel furnished been coal instead of wood; and had the company dumped a salable load into claimant's yard, consisting of lumps too robust for the fire-box of claimant's stove, would anyone seriously contend that the company would have been under duty to belabor the offending chunks into accommodating contours? Yet the duty in both cases must have been...