Griffin v. Industrial Acc. Fund , 111 Mont. 110 ( 1940 )

The decision of the Industrial Accident Board was rendered, apparently, on the theory that the injuries to Daniel Griffin did not arise "out of" and in the "course of" his employment. The district court, we believe, fell into the same error and held that the hazard to which Griffin was exposed while returning home was common to all citizens of Great Falls who used the sidewalk, that the danger to which he was subjected was not increased by his employment, and therefore claimant was not entitled to compensation. The fact is apparent that a fireman, by reason of the importance of his duties is on duty twenty-four hours a day. Equally certain it is that a fireman is on duty from the time he leaves home until he returns home. He is required to be in uniform and to respond to calls during that period. He is then acting as a fireman, in uniform, subject to call during the entire period from the time he starts to the fire station until he returns home.

The district court was much impressed by Murray Hospital v.Angrove, 92 Mont. 101, 10 P.2d 577. Logical examination of the Angrove Case discloses it to be no precedent. In theAngrove Case the plaintiff was employed in a mine. His duties commenced when he entered a specific property of his employer and terminated when he left the premises. He was struck by a car on his way to work, a considerable distance from the employer's premises, and the court held the injury not compensable, and said that the defendant was merely traveling a city street where he was subject only to the hazards common to all pedestrians, hence his injuries were not compensable. Obviously, Angrove was neither an employee, nor "in the course of his employment." The modern view of the courts concerning street risks is that recovery is allowed where the injury was received in the course of the employment, though the employment may not have required the employee's presence on the street continually, but only occasionally. Such a doctrine is logical and sound. The decisions in workmen's compensation cases have traveled far since the origin in this country of such legislation. The view of the district court and the Industrial Accident Board are expressive of the rule as announced by the supreme court of Massachusetts inMcNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, which is probably the leading case supporting the doctrine announced by the district court herein. In that case, however, the injury involved the negligence of a fellow worker, it does, however, express the earlier view applying the rule that the right to compensation for street accidents is to be tested by whether or not the hazard was one common to the public.

The following cases adhere to the rule contended for by appellant, and are directly contrary to the old rule of theMcNicol Case, including many jurisdictions which earlier expressed the view of the McNicol Case, but have abandoned it:Industrial Commission v. Pueblo Auto Co., 71 Colo. 424,207 P. 479, 23 A.L.R. 348; Industrial Commission v. Hunter,73 Colo. 226, 214 P. 393; Zeier v. Boise Transfer Co.,43 Idaho, 549, 254 P. 209; Empire Health Accident Ins. Co. v.Purcell, 76 Ind. App. 551, 132 N.E. 664; Kunze v. DetroitShade Tree Co., 192 Mich. 435, 158 N.W. 851, L.R.A. 1917A, 252;Hansen v. Northwestern Fuel Co., 144 Minn. 105, 174 N.W. 726;Bookman v. Lyle Culvert Road Equipment Co., 153 Minn. 479,190 N.W. 984; Zabriskie v. Erie Ry. Co., 86 N.J.L. 266,92 A. 385, L.R.A. 1916A, 315; Redner v. H.C. Faber Son,223 N.Y. 379, 381, 119 N.E. 842; Katz v. A. Kadans Co.,232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401; Gibbs v. R.H. Macy Co., 214 A.D. 335, 212 N.Y. Supp. 428; 242 N.Y. 551,152 N.E. 423; Chandler v. Industrial Com., 55 Utah, 213,184 P. 1020, 8 A.L.R. 930; Schroeder Daly Co. v. Industrial Com.,169 Wis. 567, 173 N.W. 328; United States Casualty Co. v.Superior Hdw. Co., 175 Wis. 162, 184 N.W. 694; Dennis v.A.J. White Co., A.C. 479 (Eng.), Ann. Cas. 1917E, 325, 15 N.C.C.A. 294; Industrial Com. v. Aetna Life Ins. Co.,64 Colo. 480, 174 P. 589, 3 A.L.R. 1336; Bendett v. MohicanCo., 98 Conn. 544, 120 A. 148; McDonald v. Gulf Ref. Co.,98 Conn. 286, 119 A. 222; Capital Paper Co. v. Conner,81 Ind. App. 545, 144 N.E. 471, 474; Stockley v. School Dist.,231 Mich. 523, 204 N.W. 715, 24 N.C.C.A. 170; Coster v.Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191.

Other cases in which the liberal modern rule is applied are:Central Surety Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907; Wilhelm v. Angell, Wilhelm Shreve, 252 Mich. 648,234 N.W. 433; Kern v. South Port Mill, 174 La. 432,141 So. 19; Johnston v. W.S. Nott Co., 177 Minn. 309, 236 N.W. 466;Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677,29 S.W.2d 128; Ridenour v. Lewis, 121 Neb. 823, 238 N.W. 745, 80 A.L.R. 119; Orange Screen Co. v. Drake, (N.J. Sup.)151 A. 486; Texas Employers Ins. Assn. v. Herron, (Tex.Civ.App.)29 S.W.2d 524. This is an appeal from the judgment of the district court denying compensation to claimant. The facts are these:

Daniel J. Griffin was employed by the city of Great Falls as a fireman. He had worked the regular eight-hour night shift at the West Side fire station of that city, ending at 7:30 A.M. on February 21, 1938. Upon completing his shift he left the station and proceeded from the station to his home. When about five blocks from his home he accidentally slipped and fell on the ice-covered sidewalk, suffering injuries from which he died on February 25. His widow, Marion Griffin, claimant here, presented a claim for compensation for herself and two minor children. The city was operating under Plan 3 of the Workmen's Compensation Act, Revised Codes of 1935, sections 2990-3011. The hearing before the board resulted in an order denying compensation. On appeal to the district court the order was affirmed. The board found that the accident which resulted in the death of Daniel Griffin did not arise out of and in the course of his employment. The district court found that it did not arise out of the employment but that it did occur during the course of his employment.

The record discloses that in Great Falls the fire department is operated by three shifts, each shift serving an eight-hour period. This is in conformity with Chapter 15, Laws of 1937. In addition to the regular eight-hour shift, each member of the fire department is subject to further call in case of conflagration or other emergency. It is conceded that at the time of the injuries resulting in the death of Daniel Griffin he had completed his regular eight-hour shift and was not at the time responding to any call resulting from an emergency or otherwise. He was simply returning to his home after his eight-hour shift was completed. He was receiving as wages $160 per month.

There are no important disputed fact questions. The sole[1] question before us is whether the accident resulting in the death of Griffin arose out of and in the course of his employment with the city of Great Falls. Unless Daniel Griffin received injuries arising out of and in the course of his employment, there can be no recovery of compensation. (Sec. 2911, Rev. Codes; Wiggins v. Industrial Accident Board, 54 Mont. 335,170 P. 9, L.R.A. 1918F, 932, Ann. Cas. 1918E, 1164;Landeen v. Toole County Ref. Co., 85 Mont. 41, 277 P. 615;Kerns v. Anaconda Copper Min. Co., 87 Mont. 546,289 P. 563.) The employer is not an insurer of his employees at all times during the period of employment. (Sullivan v. RomanCatholic Bishop of Helena, 103 Mont. 117, 61 P.2d 838.)

The rule has been settled in this state that a workman is not[2, 3] entitled to compensation for injuries received while traveling to and from his place of work by an instrumentality not under the control of the employer, and when he is subjected only to the ordinary street hazards common to all pedestrians. (Murray Hospital v. Angrove, 92 Mont. 101, 10 P.2d 577.) Here it is true that the instrumentality causing the injury — the sidewalk — was an instrumentality under the control of the employer — the city; in other words, the injury occurred on premises under the control of the employer. But unless the instrumentality causing the injury, or the premises on which the injury occurred were used in connection with the actual place of work where the employer carried on the business in which the employee was engaged, there can be no recovery. (Boscola v.Pennsylvania Coal Coke Co., 90 Pa. Super. 456; Andrisin v. Temple Coal Co., 101 Pa. Super. 235.) Conversely, if the employee is injured while carrying on the business of the employer for which he was employed, there is liability even though the injury occurred off the premises of the employer or by an instrumentality not under the control of the employer.

It does not follow that an injured workman can never recover for injuries received in ordinary street hazards. A person injured on the street or highway is entitled to compensation when, as a part of his employment, he is using the streets or highways in carrying on the work of his master. (Herberson v.Great Falls Wood Coal Co., 83 Mont. 527, 273 P. 294;Williams v. Brownfield-Canty Co., 95 Mont. 364,26 P.2d 980; and see Chisholm v. Vocational School for Girls,103 Mont. 503, 64 P.2d 838.)

In the case of Murray Hospital v. Angrove, supra, the court stated the rule as follows: "The decisions departing from this rule hardly declare exceptions, but rather find in the evidence sufficient facts on which to declare that, although away from the plant, by reason of the particular facts and circumstances the employee was still on his employer's business, and, although in a place traveled by the general public, he was thereby subjected to a greater risk than were members of the general public." This is in line with the majority rule as stated in the note in 51 A.L.R. 514, wherein it is said: "The tendency of the later cases towards a more liberal construction of the term `arising out of and in the scope of the employment' is reflected in the view now most generally taken as to street risks. The majority of the jurisdictions, as shown by the following cases, permit the recovery of compensation where the employee received a street injury while in the course of his employment, although the employment may not have required his presence on the street continually, but only occasionally, or even on the one occasion on which he was injured." For later cases to the same effect, see note in 80 A.L.R. 127.

Griffin was not at the time of the injury resulting in his[4] death carrying out any duties owed to his employer. He was simply returning from his place of employment to his home. He was free to choose his own time in returning home after completing his eight-hour shift, and was free to select his own route. His employment did not require him to be at the place where he sustained the injuries. Those injuries did not arise out of and in the course of his employment. To hold that claimant is entitled to compensation here we would be obliged to say that the employer was an insurer against accident for the full twenty-four hours of a day, no matter what the employee may have been doing during the sixteen hours when his regular services were at an end.

The further contention is made that, since complainant is[5] receiving $80 per month from the Fire Department Relief Association, she is precluded from receiving an allowance under the Workmen's Compensation Act because of section 5133, Revised Codes. What we have already said precludes recovery in this case, and hence we need not discuss this additional point.

The Industrial Accident Board was correct in holding that the injuries to Griffin were not due to an accident arising out of and in the course of his employment. The district court reached the correct result, and the judgment is accordingly affirmed.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, ERICKSON and ARNOLD concur.