Walker v. Hyde

• Decision Date: 18 February 1927
• Parties: ALTA WALKER, for Herself and as Guardian of Minor Children, Appellant, v. ROBERT P. HYDE, Employer, and the METROPOLITAN CASUALTY COMPANY OF NEW YORK, SURETY, Respondents
• Court: Idaho Supreme Court

253 P. 1104

43 Idaho 625

ALTA WALKER, for Herself and as Guardian of Minor Children, Appellant, v. ROBERT P. HYDE, Employer, and the METROPOLITAN CASUALTY COMPANY OF NEW YORK, SURETY, Respondents

Supreme Court of Idaho

February 18, 1927

MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT - STIPULATED FACTS-BURDEN OF PROOF ON CLAIMANT - TERMS IN ACT CONSTRUED-INJURY NOT IN COURSE OF EMPLOYMENT.

1. The facts being stipulated in a compensation case and adopted as the board's findings, the question whether the accident arose out of and in the course of employee's employment is one of law.

2. Claimant, in compensation case, has the burden of showing that injury occurred in connection with the employment, and that it arose out of and in the service at which the injured person was employed.

3. Within the Workmen's Compensation Act (C. S., sec. 6213 et seq.), the words "out of" refer to origin or cause of the accident, and the words "in the course of" to the time, place and circumstances under which it occurred.

4. Injury to one employed to cut timber, having occurred a half mile from his place of employment, when he, while returning from lunch, attempted to get on a truck for a ride, the truck not having been furnished as a means of transportation, did not arise out of and in the course of his employment within C. S., sec. 6217, though the accident occurred on the premises where the log- ging operations were being carried on; it not being on a way provided by the employer which the employee was required to travel, so that he was under the employer's domination.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. W. F. McNaughton, Judge.

Judgment affirming order of Industrial Accident Board denying compensation. Affirmed.

Judgment affirmed; Costs awarded to respondents.

James F. Ailshie and James F. Ailshie, Jr., for Appellants.

A personal injury, by accident, received by a workman, during the noon hour, at a point located on the employer's premises, and at a time when the workman has started back to work, arises out of and in the course of his employment. ( North Carolina R. Co. v. Zachary, 223 U.S. 248, Ann Cas. 1914C, 159, 34 S.Ct. 305, 58 L.Ed. 591, 9 N.C. C. A 109; 1 Honnold on Workmen's Compensation, p. 379, sec 111; In re Sundine, 218 Mass. 1, 105 N.E. 433, L. R. A. 1916A, 318; Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215; Employers' Mut. Ins. Co. v. Industrial Commission, 76 Colo. 84, 230 P. 394; Thomas v. Proctor & Gamble, 104 Kan. 432, 6 A. L. R. 1145, 179 P. 372; Boyle v. Columbia Fire Proofing Co., 182 Mass. 93, 64 N.E. 726; Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L. R. A. 1918F, 923.)

The temporary cessation of actual performance of labor for the purpose of eating lunch, securing clothing, securing a drink, securing tools owned by the employee, answering the call of nature and going to and from the places where these necessary acts are done, and any other reasonable or necessary incidents of daily life, are a part of the employment, and an injury occurring during such a period is an incident to the employment and compensable. (Zabriske v. Erie R. Co., 68 N.J.L. 266, 92 A. 385, L. R. A. 1916A, 315; DeMann v. Hydraulic Engineering Co., 192 Mich. 594, 159 N.W. 380; City of Milwaukee v. Althoff, 156 Wis. 68, 145 N.W. 238, L. R. A. 1916A, 327; City of Milwaukee v. Industrial Com., 185 Wis. 311, 201 N.W. 240; Beaudry v. Watkins, 191 Mich. 445, 158 N.W. 16, L. R. A. 1916F, 576; Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128; Lowe v. General Steam Fishing Co. (Eng.), note, L. R. A. 1916A, p. 320; Western Coal & Min. Co. v. Industrial Com., 296 Ill. 408, 129 N.E. 779; De Filippis v. Falkenberg, 170 A.D. 153, 155 N.Y.S. 761.)

An injury received by a workman while on his way to work and prior to the actual commencement of his labors comes within the act. (Flynn v. Carson, 42 Idaho 141, 243 pac. 818.)

Ralph S. Nelson and E. R. Whitla, for Respondents.

The injury must arise "out of" and "in the course of" the employment before the workman is entitled to compensation. (C. S., sec. 6217; Tiralongo v. Stanley Works, 104 Conn. 331, 133 A. 98; Gale v. Krug Park Amusement Co. (Neb.), 208 N.W. 739; Sure Pure Ice Co. v. Industrial Com., 320 Ill. 332, 150 N.E. 909; Brady v. Oregon Lumber Co., 117 Ore. 188, 243 P. 96; Cox v. Kansas City Refining Co., 108 Kan. 320, 19 A. L. R. 90, 195 P. 863; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L. R. A. 1916F, 1164; Ryan v. City of Port Huron, 234 Mich. 648, 209 N.W. 101; Board of Education v. Industrial Com., 321 Ill. 23, 151 N.E. 499; Gibbs v. Almstrom, 145 Minn. 35, 11 A. L. R. 227, 176 N.W. 173; Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 A. 368; Hills v. Blair, 182 Mich. 20, 148 N.W. 243.)

Where the employee is injured going to or returning from work or while securing lunch, at a place selected by himself and not at a place provided by his employer, the injury does not arise out of or in the course of the employment and the act does not apply. (1 Honnold on Workmen's Compensation, pp. 375, 379; California Casualty Indemnity Exchange v. Industrial Com., 190 Cal. 433, 213 P. 357; Southern Surety Co. v. Galloway, 89 Okla. 45, 213 P. 850; In re Gardner, 247 Mass. 308, 142 N.E. 32; Fairbank Co. v. Industrial Com., 285 Ill. 11, 120 N.E. 457; Taylor v. Binswanger & Co., 130 Va. 545, 107 S.E. 649; In re Betts, 66 Ind.App. 484, 118 N.E. 551; Clark v. Vorhees, 231 N.Y. 14, 131 N.E. 553; In re Haggard's Case, 234 Mass. 330, 125 N.E. 565; Bell's Case, 238 Mass. 46, 130 N.E. 67; Universal Portland Cement Co. v. Spirakis, 79 Ind.App. 17, 137 N.E. 276; Morey v. City of Battle Creek, 229 Mich. 650, 38 A. L. R. 1039, 202 N.W. 525; Hills v. Blair, 182 Mich. 20, 184 N.W. 243.)

Where the employee is choosing his own method of transportation to or from work or the injury occurs at noon when he is not under the direction of the employer or when he has turned aside temporarily for a purpose other than that for which he is employed, and is injured, he is not entitled to compensation under the act. (Board of Education v. Industrial Com., 321 Ill. 23, 151 N.E. 499; Gibbs v. Almstrom, 145 Minn. 35, 11 A. L. R. 227, 176 N.W. 173; Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N.W. 657; Haas v. Kansas City L. & P. Co., 109 Kan. 197, 198 P. 174; Colucci v. Edison Portland Cement Co., 94 N.J.L. 542, 10 A. L. R. 1486, 111 A. 4; Gacesa v. Consumers Power Co., 220 Mich. 338, 24 A. L. R. 675, 190 N.W. 279; Northwestern Pacific R. Co. v. Industrial Com., 174 Cal. 297, 163 P. 1000, L. R. A. 1918A, 286; Kraft v. West Hotel Co., 193 Iowa 1288, 31 A. L. R. 1245, 188 N.W. 870; Withers v. Employers Liability Co., 252 Mass. 415, 40 A. L. R. 1475, 147 N.E. 831; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N.W. 325, L. R. A. 1916A, 310; Utah Copper Co. v. Industrial Com., 62 Utah 33, 33 A. L. R. 1327, 217 P. 1105; Jacobson's Case, 248 Mass. 466, 143 N.E. 317.)

BUDGE, J. Wm. E. Lee, C. J., and Taylor, J., concur. GIVENS, J., T. Bailey Lee, J., Dissenting.

OPINION

BUDGE, J.

Robert P. Hyde purchased certain timber and entered into a contract with one Moore, whereby the latter was to have charge of cutting the timber and hauling it from the woods to the railroad track. Compensation insurance premiums on Moore and his employees were to be paid by Hyde, and were so paid, including premium on Clifford S. Walker, deceased. Hyde made an independent contract with one Hodson, whereby Hodson was to furnish a truck and driver for hauling some of the logs. The driver of the truck was paid by Hyde and such payments were ultimately charged to Moore and deducted from his contract. Moore employed Clifford S. Walker and one of Walker's sons as sawyers, whose sole work and employment was to cut down trees and saw them into logs for which they received a stipulated sum per thousand feet. They were piece workers.

Walker and his son resided a distance of about one mile from the scene of their employment, and sometimes would go home for their noonday meal, and at other times lunch would be brought to them by one of Walker's children. On August 18, 1924, at which time the logging operations were in progress, Walker and his son started home for lunch, but when they had gone some distance were met by one of the children bringing their lunch. After eating and upon their way back to work they were overtaken on the road by the Hodson truck, which was returning from the railroad right of way. As the truck approached the Walkers, they stepped to the left of the road to allow it to pass. A team a little ahead caused the driver of the truck to slow down, and as he did so the elder Walker ran around behind the truck to the right side and attempted to board its front bunk. In his attempt to get on the truck, Walker fell, and one of the rear wheels passed over his body causing instant death. The driver of the truck did not see Walker when he attempted to ride, and did not know that he intended so doing. It was known that the deceased had, on at least two occasions, ridden on the trucks, and others working for Moore had been known to ride on them. No orders or instructions had been given with reference to riding on the trucks, and the employer did not furnish transportation of any kind to the deceased or to his son.

The above is the substance of a stipulation of facts upon which a claim for compensation was made to the Industrial Accident Board by the wife and minor dependent children of the deceased. The board denied compensation and an appeal was taken to the district court which affirmed the decision of the board, whereupon the claimants prosecuted an appeal to this court.

The facts being stipulated and adopted as the findings...