Zeier v. Boise Transfer Co.

• Decision Date: 14 February 1927
• Citation: 254 P. 209,43 Idaho 549
• Parties: BEULAH A. ZEIER, Respondent, v. BOISE TRANSFER COMPANY and MARYLAND CASUALTY COMPANY, Appellants
• Court: Idaho Supreme Court

254 P. 209

43 Idaho 549

BEULAH A. ZEIER, Respondent, v. BOISE TRANSFER COMPANY and MARYLAND CASUALTY COMPANY, Appellants

Supreme Court of Idaho

February 14, 1927

MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT - INJURY ON STREET "ARISES OUT OF EMPLOYMENT.

1. Where employment requires employee to be on street, he is subjected to different risk than ordinary traveler, and so if he is injured while engaged in that duty or something incidental thereto, accident "arises out of employment."

2. Where employee, who was on duty between hours of 12 and 1 was instructed to go to freight depot to deliver bill of lading and then as soon as possible unload a truck on company's scales, and was injured when returning in direction of employer's place of business after securing lunch at home at about 12:15, accident held to have arisen out of and in course of employment.

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

Application for compensation. Award of Industrial Accident Board affirmed by district court. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Chas M Kahn, for Appellants.

For interpretation of "arising out of and in the course of any employment," see Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N.W. 325, L. R. A. 1916A, 310; Re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 307; Re Donahue, 226 Mass. 595, 116 N.E. 226, L. R. A. 1918A, 215; Industrial Com. v. Anderson, 69 Colo. 147, 169 P. 135.

As to risks of the commonalty and street risks, see Corke v. Wigan, 2 B. W. C. C. (Eng.) 35; Re Donahue, 226 Mass. 595, 116 N.E. 226, L. R. A. 1918A, 215; Newman v. Newman, 169 A.D. 745, 155 N.Y.S. 665, 218 N.Y. 325, 113 N.E. 332; DeVoe v. New York R. R. Co., 169 A.D. 472, 155 N.Y.S. 12; Jack v. Morrow Mfg. Co., 194 A.D. 565, 185 N.Y.S. 588; 28 R. C. L., sec. 93, pp. 804, 805.

Workmen injured going to or returning from work are not entitled to compensation. (Honnold on Workmen's Comp. Act, sec. 108, p. 362, sec. 107, p. 358 (362); Bradbury's Workmen's Comp. Act, pp. 404-412; Schneider's Workmen's Comp. Act, pp. 506-512; Industrial Accident Com. v. Anderson, 69 Colo. 147, 169 P. 135.)

An employee injured on way to or from meals is not entitled to compensation. (Honnold on Workmen's Comp. Act, sec. 107, p. 358 (361); Boyd's Workmen's Comp. Act, sec. 481, p. 1061; Hills v. Blair, 182 Mich. 20, 148 N.W. 243; Wilson v. Chesapeake & O. Ry. Co., 130 Ky. 182, 113 S.W. 101; Clark v. Vorhees, 231 N.Y. 14, 131 N.E. 553; McInerney v. Buffalo S. R. Corp., 225 N.Y. 130, 121 N.E. 806; Haggard's Case, 234 Mass. 330, 125 N.E. 565; California Highway Com. v. Industrial Accident Com., 61 Cal.App. 284, 214 P. 658; London Guarantee & Acc. Co. v. Industrial Acc. Com., 190 Cal. 587, 213 P. 977; Pearce v. Industrial Acc. Com., 299 Ill. 161, 18 A. L. R. 523, 132 N.E. 440; Taylor v. Morrow, 130 Va. 545, 107 S.E. 649; Southern Surety Co. v. Galloway, 89 Okla. 45, 213 P. 850; In re Frisch (Ohio), 12 Neg. & Com. Cas. 389, note 1, par. 6.)

Morgan & Smith, for Respondent.

The doctrine that if the public is exposed to the same hazard as was the injured employee then he, for that reason, may not recover is not supported by the weight of authority nor followed by the more recent decisions. Particularly is this true where the employment is one which requires the employee to subject himself to unusual exposure to street risks such as does that of a messenger or truck driver. (Fogg's Case, 125 Me. 168, 132 A. 129; Chandler v. Industrial Com., 55 Utah 213, 8. A. L. R. 930, 184 P. 1020; Cook's Case, 243 Mass. 572, 29 A. L. R. 114, 137 N.E. 733, and cases cited; Globe Indemnity Co. v. Industrial Acc. Com., 36 Cal.App. 280, 171 P. 1088; Keaney's Case, 232 Mass. 532, 122 N.E. 739; Hansen v. Northwestern Fuel Co., 144 Minn. 105, 174 N.W. 726; Miller v. Taylor, 173 A.D. 865, 159 N.Y.S. 999; Employers' Indemnity Corp. v. Kirkpatrick (Tex. Civ. App.), 214 S.W. 956; Beaudry v. Watkins, 161 Mich. 445, 158 N.W. 16, L. R. A. 1916F, 576; Burton Auto Transfer Co. v. Industrial Com., 37 Cal.App. 657, 174 P. 72; Siglin v. Armour & Co., 261 Pa. 30, 103 A. 991; City of Milwaukee v. Althoff, 156 Wis. 68, 145 N.W. 238, L. R. A. 1916A, 327; Newark Paving Co. v. Klotz, 85 N.J.L. 432, 91 A. 91; Zabriskie v. Erie R. Co., 86 N.J.L. 266, 92 A. 385; Porter Co. v. Industrial Com., 301 Ill. 76, 133 N.E. 652; M'Neice v. Singer Sewing Mach. Co., Ltd., 4 B. W. C. C. 351; Bett v. Hughes, 8 B. W. C. C. 362; Reugg's Workmen's Compensation, 9th ed., pp. 91-93.)

If, owing to the necessities of the situation, an employee incidentally leaves his work to obtain necessary refreshment, his manner in so doing tending to further his master's interests, and if he meets with an accident while so refreshing himself, or in going to or returning from the place of refreshment, the accident arises out of and in the course of the employment and the resulting injury is compensable. (Carter v. St. Louis, T. & R. Co., 307 Mo. 595, 271 S.W. 358; National Biscuit Co. v. Roth, 83 Ind.App. 21, 146 N.E. 410; Rainford v. Chicago City Ry. Co., 289 Ill. 427, 124 N.E. 643; Papineau v. Industrial Acc. Com., 45 Cal.App. 181, 187 P. 108; Clem v. Chalmers Motor Co., 178 Mich. 340, 144 N.W. 848, L. R. A. 1916A, 352; Harival v. Hall-Thompson, 98 Conn. 753, 120 A. 603; Stansberry v. Monitor Stove Co., 150 Minn. 1, 20 A. L. R. 316, 183 N.W. 977; Consolidated Underwriters v. Breedlove (Tex. Civ. App.), 265 S.W. 128.)

"An injury occurs in the course of the employment within the meaning of the compensation act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment, or is engaged in doing something incident to it." (Granite Sand & Gravel Co. v. Willoughby, 70 Ind.App. 112, 123 N.E. 194; Rogers v. Davis, 39 Idaho 209, 228 P. 330; Fogg's Case, supra; National Biscuit Co. v. Roth, supra; Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; 1 Honnold on Workmen's Compensation, p. 346, par. 105; Superior Smokeless Coal & Min. Co. v. Hise, 89 Okla. 70, 213 P. 303; Archibald v. Ott, 77 W.Va. 448, 87 S.E. 791, L. R. A. 1916D, 1013; In re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306; Schweiss v. Industrial Com., 292 Ill. 90, 126 N.E. 566; Mueller Const. Co. v. Industrial Board, 283 Ill. 148, 118 N.E. 1028.)

GIVENS, J. Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

John N. Zeier, employed by the Boise Transfer Company, while riding a bicycle along Grove Street, Boise, was struck by an automobile and received injuries from which he died two days thereafter. On application of Beulah A. Zeier, wife of deceased, the Industrial Accident Board, after a hearing, awarded her and her minor child compensation. On appeal to the district court the findings, conclusions and award of the board were sustained, whereupon this appeal was taken.

Appellants contend that the injury which caused Zeier's death did not arise out of and in the course of his employment because: first, the risk was common to all the public, and, second, that Zeier was returning from lunch when injured, and hence was not entitled to compensation.

It was the custom of the employees of the Transfer Company to take turns from week to week remaining on duty between the hours of 12 and 1 o'clock subject to call by the Transfer Company, and on the day of and during the week of the accident, Zeier was on duty and employed between those hours and a few minutes after 12 was specifically instructed by McBride, under whose direction and control he was working, to go to the freight depot and get and deliver a bill of lading and then as soon as possible unload a truck which was blocking the company's scales. Zeier left the office of the Transfer Company and some fifteen minutes after 12 arrived at his home and secured a quick lunch and shortly before 1 o'clock, while riding in the direction of the Transfer Company's place of business, the accident occurred.

Where the employment requires the employee to be on the street he is subjected to a different risk than the ordinary traveler and so if he is injured while engaged in that duty or something incidental to it the accident arises out of the employment. This doctrine is well stated in Reugg's Workmen's Compensation, 9th ed., page 91, quoting from Dennis v. White, 10 B.W.C.C. 280:

"If a servant in the course of his master's business has to pass along the public street, whether it be on foot or on a bicycle, or on an omnibus or car, and he sustains accident by reason of the risks incidental to the streets, the accident arises out of as well as in the course of his employment."

"Injury to employee struck by an automobile, while on an errand for his master, was a direct and absolute result of risk reasonably incident to employment and was an accident 'arising out of employment,' within the Workmen's Compensation Act." (Palmer v. Main, 209 Ky. 226, 272 S.W. 736.)

A mechanic subject to call at any time went out to fix a battery and on his way back stopped for lunch and after lunch while on his way to the employer's shop was injured while in the course of his employment. (Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128.) Other cases in line with such holding are: Mahowald v. Thompson-Starrett Co., 134 Minn. 113, 159 N.W. 565; Miller v. Taylor, 173 A.D. 865, 159 N.Y.S. 999; Putnam v. Murray, 174 A.D. 720, 160 N.Y.S. 811; Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N.W. 851, L. R. A. 1917A, 252.

"Where exposure to ordinary street risks is inherent in the nature of the employment or where the particular work being performed...