McGrail v. Dept. of Lab. Industries , 190 Wash. 272 ( 1937 )

The motion to dismiss the appeal or to strike the statement of facts is properly determined by the majority.

On the merits, I am unable to concur with the prevailing opinion. In my view, there is no rational distinction between the controlling facts as set out by the majority and the decision in the MacKay case (181 Wn. 702, 44 P.2d 793). If there is any distinction, it is favorable to the decision of the trial court in this case.

The facts are correctly stated in the prevailing opinion, and from the statement it appears that McGrail hired himself and his truck to the state. The truck received much more service than McGrail and was therefore to be much more greatly compensated. There is no difference, however, between hiring one's self and one's truck to another, or hiring one's self and a wagon and team, or an ordinary shovel. If the wagon and team or the shovel should be paid for when in use by other workmen under their contract and the owner should keep it in repair, as was the case here, then certainly the owner was in the course of his employment when he went for the purpose of securing repairs to the thing he was obligated to keep in repair.

As stated by the majority, the purpose of the trip to Wenatchee was to procure tires for the McGrail truck. It was necessary for the tires to be kept in repair or the truck would be left off the job. That would certainly decrease McGrail's compensation. Hence, it cannot be said that there was no connection between the contract for the personal services of the employee and that for the hiring of his truck.

Although we have sometimes said that the meaning of the term "course of employment" is to be liberally construed (Wabnec v.Clemons Logging Co., 146 Wn. 469, 263 P. 592), it would seem that that rule is observed in some cases and disregarded in others. We should be consistent.

Wabnec, in the last cited case, was injured in the course of his employment, although he had not yet commenced work, but was on his way to camp where his services were to begin. Hilding, inHilding v. Department of Labor Industries, 162 Wn. 168, 298 P. 321, who was returning to the state after performing certain work and was accidentally killed in Idaho, was in the course of his employment; Burchfield, in Burchfield v. Department of Labor Industries, 165 Wn. 106, 4 P.2d 858, a workman driving his own automobile from one port to another so as to engage in the work of loading a ship owned by his employer, was in the course of his employment; and if MacKay, in the case discussed in the prevailing opinion, was in the course of his employment, then most assuredly was McGrail.

The prevailing opinion ignores the test stated therein in the following language:

"The test for determining whether an employee is, at a given time, in the course of his employment, is whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment or by the specific direction of his employer, or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer's interests."

The cases cited in respect to that test state the true rule in this state.

The judgment should be affirmed.