White v. State Indus. Acc. Commission

• Decision Date: 13 February 1964
• Citation: 389 P.2d 310,236 Or. 444
• Parties: Otis J. WHITE, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Appellant.
• Court: Oregon Supreme Court

Page 310

389 P.2d 310

236 Or. 444

Otis J. WHITE, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon,

Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Nov. 1, 1963.

Decided Feb. 13, 1964.

Earl M. Preston, Asst. Atty. Gen., Eugene, argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen., Salem.

Kendrick Mercer, Eugene, argued the cause for respondent. With him on the brief were Arthur C. Johnson and Johnson, Johnson & Harrang, Eugene.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, and LUSK, JJ.

LUSK, Justice.

Plaintiff, a teacher at the Reedsport Union High School in Reedsport, Oregon, was struck by an automobile and injured while crossing Highway 101 on his way back to the school from his home where he had gone for lunch. He and his employer, the High School District, were under the Workmen's Compensation Law. The plaintiff filed a claim for compensation with the defendant commission which was rejected. He appealed to the circuit court where, in a jury trial, he recovered a judgment. The defendant has appealed, assigning as error the court's denial of its motion for a directed verdict based on the ground that his injury was not one 'arising out of and in the course of his employment.' ORS 656.152.

The school was located at the intersection of Twenty-second Street and Highway 101 in Reedsport. Plaintiff lived about a block and a half away and customarily went home for lunch. As the school was located on the south side of the highway and plaintiff lived to the north of it, he was required to cross the highway in going to and from his work. It was a four-lane highway as it passed the school and carried heavy traffic. There were no traffic control signals at the intersection and no marked pedestrian crosswalks.

Plaintiff introduced in evidence a rule of the State Board of Education reading as follows:

'Teachers shall exercise watchful care and oversight over the conduct and habits of the pupils, not only during school hours, but also at recesses and noon intermission, and shall have power to punish a pupil for misconduct on the way to and from school. This should not be construed to mean that school administrator and teachers are to be held accountable for pupils' conduct or their safety while enroute to and from school.'

Plaintiff testified that there were a great many pupils who lived in his neighborhood and that if he saw any violation of rules or misconduct on the part of pupils off the school grounds on their way to or from school it was his duty to report it to the principal or take whatever action was necessary, depending on the circumstances. Generally, his very presence would avoid most of the troubles. The principal of the school testified that all the teachers had the supervision of the pupils during the entire course of the school day, both on and off the school grounds.

Before the case was submitted to the jury, the plaintiff withdrew an issue tendered by the complaint to the effect that the crossing of Highway 101 by him in order to reach the school premises was a special risk of his employment. See Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; 1 Larson's Workmen's Compensation Law 197, § 15.13. The sole question for decision is whether there is substantial evidence, in view of plaintiff's duties with regard to the conduct of pupils outside of school hours, that the plaintiff was rendering service to his employer at the time of the accident and, therefore, that the injury he sustained arose out of and in the course of his employment.

Generally, injuries sustained by employees when going to or coming from their regular place of work are not deemed to arise out of and in the course of their employment. Philpott v. State Ind. Acc. Com., Or., 379 P.2d 1010, and cases there cited. The rule applies to lunch-time travel. 'Actually,' says Professor Larson, 'when the employee has a definite place and time of work, and the time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions.' Larson, op. cit., 213, § 15.51. Plaintiff does not dispute the rule, but says that the present case falls within an exception. A discussion of the claimed exception and cases which have considered it is to be found in Larson, op. cit., 247, § 18.20, under the heading 'Concurrent service while going to and from work'.

The right of a public school teacher to recover compensation under facts somewhat similar to those of the present case was sustained in two decisions cited by the plaintiff: Logue v. Independent School Dist. No. 33, Ada County, 72 Idaho 44, 21 P.2d 534; Nevada Ind. Com. v. Leonard, 58 Nev. 16, 68 P.2d 576. Statutes of Iadho and Nevada prescribing the duties of public school teachers with regard to the conduct of pupils away from the school are substantially the same in meaning as the rule of the Oregon State Board of Education above quoted; but in each of the cited cases it appears that at the time of the accident the teacher was engaged in observing the conduct of pupils of the school where he ...