Walker v. Hyde , 43 Idaho 625 ( 1927 )

Prior to June 1, 1924, Robert P. Hyde purchased certain timber and thereafter contracted with W.E. Moore for the cutting of the timber. All compensation insurance premiums on Moore and his men were to be paid by Hyde and deducted from the contract price. The premiums were paid by Hyde, including that upon Clifford S. Walker, the deceased. Moore, as a part of his contract, was to haul the timber from the woods to the railroad track. Hyde made an independent contract with one Loy Hodson, whereby Hodson was to furnish a truck and driver for hauling logs at a certain sum per thousand feet. Jim Johnson was the driver hired by Hodson, Hyde paying his wages and charging it to Hodson. All these payments were ultimately charged to Moore and deducted from his contract. Clifford S. Walker, deceased, and his son Walter were employed, in July, 1924, as sawyers, their sole work being to cut down trees and saw them into logs, their pay being $1.25 per thousand feet. The deceased and his son lived at home and part of the time would go home to lunch, while at other times would have their lunch brought to them.

On August 18, 1924, deceased and his son started home for lunch, but when they had gone some little distance they were met by one of the deceased's children bringing their lunch. After eating and upon their way back to work they were overtaken by Jim Johnson driving the Hodson truck over the logging road, returning from the rollways on the railroad right of way where he had unloaded. As the truck approached, the deceased and his son stepped to the left to allow it to pass. A team a little ahead caused the truck to slow down, and the deceased ran around the back of the truck to the right side, and, while attempting to board the front bunk of the truck, fell in some manner and one of the wheels of the truck passed over his body, causing instant death. Johnson, the driver, did not see Walker, and did not know he intended or attempted to ride. The deceased had ridden on the truck on at least two or three other occasions, and others working for Moore had also ridden. No orders or instructions with reference to riding the trucks had been given, and the employer did not furnish any transportation for the deceased or his son.

The board adopted the stipulation as its findings of fact, and denied appellant's claim for compensation, and an appeal was then taken to the district court, where the action of the board was affirmed, whereupon this appeal was taken.

The sole question for determination is whether the accident resulting in Walker's death "arose out of and in the course of" his employment. (C. S., sec. 6217.)

The general rule is that an injury occurring to an employee going to or from his work does not arise out of his employment. Various exceptions, however, have been recognized, based upon different grounds — for instance, that the employee is on the master's premises immediately adjacent to the actual place of employment; going or returning in a conveyance furnished by the employer; traversing the only means of ingress or egress, whether furnished by the employer or by others, but used with the employer's knowledge and consent; performing some particular work for the employer, although the place of the accident and the cause was common to any traveler; when going to or from the employer's place of business at the specific instance and request of the employer, as, for instance, the case of a traveling man employed by an English house returning at his employer's request to England on the "Lusitania" at the time it was sunk by a torpedo. (Foley v. Home Rubber Co., 89 N.J.L., 474, 99 A. 624.)

Applying some of these tests to the case under consideration we find that the deceased was returning to his work. The employer had the right to use and occupy the land upon which the timber was growing and which he was logging off, and the deceased was merely crossing these premises in order to get to the immediate place of employment; he was therefore on the master's premises to the extent that it was necessary for him to cross the intervening land, although not on the premises in the sense that an employee would be on the premises of a factory where such ground might be inclosed by fence or other structure or in a building in some part of which the employee performed a specific task. The deceased was traversing a roadway furnished by the employer apparently for the primary purpose of hauling logs, but, go far as the stipulaton and map showed, the only roadway running from near deceased's home toward his immediate place of employment. The stipulation shows that twice before the deceased had ridden on a truck similarly used as that which caused his death if not the same truck, and that others had ridden on these trucks. The stipulation says, "It was known." While perhaps ambiguous, it is reasonable to infer that the knowledge meant was the knowledge of the employer. Certainly the employer knew that it was necessary for the deceased to cross the intervening land in the area containing the employer's timber to reach the place where he was called upon to cut down trees.

What may be called the Illinois rule appears to be that, if the injured employee was on the master's premises going to or from his work, leaving at a reasonable time, and following the customary or permitted route off the premises, the accident arises out of the employment. Wabash Ry. Co. v.Industrial Com., 294 Ill. 119, 128 N.E. 290, Schweiss v.Industrial Com., 292 Ill. 90, 126 N.E. 566, cited with approval in Makins v. Industrial Com., 198 Cal. 698, 247 P. 202, andNovack v. Montgomery Ward Co., 158 Minn. 495, 198 N.W. 291, and followed in Jeffries v. Pitman-Moore Co., 83 Ind. App. 159,147 N.E. 919, where a factory employee, going to work at the usual and customary time over a roadway constructed and maintained by the employer for use of employees in going to and from the factory building, was accidentally killed on such roadway near his place of work on the premises of the employer, and it was held that his death was a result of an accident in the course of and arising out of his employment, on the theory that at the time of the accident he was going to his work and performing a duty he owed his employer, and was proceeding through the premises of his employer over a way prepared and maintained by his employer for that purpose; Indian Hill Clubv. Industrial Com., 309 Ill. 271, 140 N.E. 871, where a caddy had left the scene of his employment and was merely going home along a roadway on the club grounds, was injured, and held entitled to compensation. (Crane v. Industrial Com., 306 Ill. 56,137 N.E. 437.)

A much stronger case is Porter v. Industrial Com., 301 Ill. 76,133 N.E. 652, where a traveling salesman was going from lunch at his home to the factory or home office of the company by which he was employed, and, while getting on a street-car, was injured by an automobile and compensation was allowed. Clearly he was not on the master's premises nor traveling by means furnished by the employer, nor even on a roadway or passageway furnished by his employer.

In Thomas v. Proctor Gamble, 104 Kan. 432, 6 A.L.R. 1145, 179 P. 372, the court held that a young girl employed in a factory suffered an accident arising out of her employment when during the noon hour, while not at work, she was injured by playing in the factory with other employees on a truck; such amusement being with the consent and approval of the foreman.

Western Coal M. Co. v. Industrial Com., 296 Ill. 408,129 N.E. 779, is quite closely in point. There a minor going to the mine to commence his work walked on a railroad track, the railroad company not being owned by the mining company although it traversed the mining company's premises, in some manner unknown as there were no eyewitnesses, was killed, and it was held that it was an accident arising out of his employment.

If Walker had not been an employee, he would have had no occasion to, and would have had no right to, be traversing the road in question. It was because of his employment that he sought to ride upon the truck. The road was the common way, and, according to the map, the only way provided for him to travel on his way to work. If he had not been so employed and if he had not been on his way to work — in other words, if he had not been engaged upon his master's business, though it was preparatory to his actual employment — the accident would not have happened to him as an employee; hence the accident arose out of the employment. (Terlecki v. Strauss, 85 N.J.L. 454,89 A. 1023.)

Hills v. Blair, 182 Mich. 20. 148 N.W. 243, is a case largely relied upon by respondents, and the point is made in that and other cases that there must be a limit of distance beyond the actual scene of the employment beyond which the employer is not responsible, and where, if an accident occurs, it does not arise out of the employment, and that is true; nevertheless Michigan has recognized that, where an accident occurred on the master's premises, though not in the building wherein the employee worked, such is an accident arising out of the employment. (Brink v. Wells Lbr. Co., 229 Mich. 35,201 N.W. 222.) What that distance must be, and the attendant circumstances which remove the accident from the terms of the statute, must necessarily vary with each particular case, but it does not seem to me that it is reasonable to say in the instant case that the accident did not arise out of and in the course of Walker's employment. Certainly Walker would not be subjected to the dangers of walking upon this road or trying to ride on a truck on this road to his place of employment if he had not been engaged in cutting timber on these particular premises, and the soundness of such doctrine has been recognized by the supreme court of the United States. (Cudahy Packing Co. v. Parramore,263 U.S. 418, 30 A.L.R. 532, 44 Sup. Ct. 153, 68 L. ed. 366.) Some courts have allowed compensation under similar circumstances, even though the employee was not on his master's premises. (Monroe County v. Industrial Com., 184 Wis. 32,198 N.W. 597.) Being on the premises is of some importance. (Moorev. Cincinnati N. O. R. P. R. Co., 148 Tenn. 561,256 S.W. 876; Erie R. Co. v. Winfield, 244 U.S. 170, Ann. Cas 1918B, 662, 37 Sup. Ct. 556, 61 L. ed. 1057.)

There is no question of contributory negligence (C. S., sec. 6214), and there is no contention that he was attempting to board the truck for a purpose entirely his own, unconnected with his master's business.

The judgment should be reversed, with instructions to enter judgment for appellants.

I am authorized to say that T. Bailey Lee, J., concurs with me in this opinion.

Petition for rehearing denied.