*1 the issue Having reconsidered parties. P.2d 455 we now reverse. presented, GRANT, Thelma R. In the Case of Deceased. from an order appeal instant arises The denying bene- Industrial Commission GRANT, Claimant-Appellant, Earl Robert wife of his to claimant for the death fits at the annual Christmas which occurred AND Brown- ORTHOPEDIC her BROWNFIELD’S party sponsored COMPANY, Employer, Company. PROSTHETIC Orthopedic and Prosthetic field’s Fund, Surety, De- and State Insurance an issue of first presents us with appeal The fendants-Respondents. jurisdiction: in this Does impression employee occurring of an accidental death No. party employer-sponsored at an Court of Idaho.
Supreme arise out of and in the course of work- of an award purposes ment for 7, 1983. Sept. benefits? compensation men’s 10, 1983. Rehearing Denied Nov. a full time Ruth had been
Thelma Grant June, 1970. Brownfield’s since employee of 21, 1977, she attended December On sponsored party annual Christmas husband, Earl Robert with her Brownfield’s evening was held Grant. in Boise. Country Club Creek Crane dinner, Mrs. eating party, while During meat and died piece choked on a Grant strangulation. for timely application filed an Mr. Grant benefits, alleging compensation workmen’s of and in death arose out that his wife’s Brown- with employment of her course surety its denied Brownfield’s and field’s. was a covered accident. her death referee Rob- hearing before Following a sev- the referee entered Youngstrom, ert C. fact, disputes, no one eral as follows: paraphrased can and which sponsored had 1950 Brownfield’s Since employees. for its annual Christmas both of Brownfield’s management and ar- party, the 1977 Christmas planned with costs associated pay all ranged acknowledged purpose Brownfield’s promote was to in sponsoring Caldwell, Brauner, for claim- William J. among employees, will and morale good ant-appellant. and to relations foster Kitch, Boise, Hollis A. Boyd Paul S. to socialize opportunity provide defendants-respondents. for work for their thank party, prior year. Sometime BISTLINE, Justice. and location of the date notice Brownfield’s premises on the posted rehearing, petition granted Having compa- all of the inviting from the briefing additional received we *2 that he concluded ny Obviously, to attend. The office subse- the referee manager if he tried to quently employ- ascertained the number of function performed had Although ees who the planned attend. into Mrs. Larson’s not fit Grant but could not employees were told that had to they And was categories. three black-letter attend, nine the em- company’s of twelve the it. indicates Nothing the of end ployees were in was attendance. The the aware that black-letter referee was evening, held in the after hours. working employee activi- summary lumped together and are recreational those which ties which decision, To reach a the referee resorted social, and, paragraph that in the imme- are to the black-letter from opening paragraph following passage, diately black-letter by Larson, 22.00 of Work- § the text 1A concern, text shows that its as Larson Law, (herein- Compensation p. men’s 5-71 in the passage, black-letter after outlined Larson), guide upon him in passing with recreational activities: primarily claim: “Recreational or social activities are with- comparatively development “A recent employment course of when ‘employment in environment’ is the “(1) widespread increasing prevalence of they occur on the a premises period regular lunch or recreation a activities encour- sponsored, recreational employment; incident of the permitted varying or or in aged degrees by employers. range These activities all the “(2) or im- expressly way financing from a world-famous bas- pliedly requiring participation by mak- or holding team to a activity part three-legged of the services of an ketball employee brings the activity company picnic. Although within the race employment; orbit of the new, or the cases in this field are relatively the principles closely at stake are analo- “(3) the employer derives substantial di- rect to those which been gous benefit have discussed activity from beyond intangible injuries, value of in in connection with lunch-time improvement em- ployee health and morale common going coming, personal that is comfort to all cases; and, kinds of recreation life.” and social on of principles the basis fields, from R., attempt drawn these p. 38. systematize made this section In making application to the virtual- developing law on recreational activities.” ly undisputed facts, conclu- referee’s 22.00, p. (emphasis added). 5-71 sions of law are contained short in four which, sentences with our own letter- arabie in the referee’s decision indicates Nothing ing, are as follows: subsequent passage that he considered a (a) “The evidence in this case does not covers specifically Larson social ac-
place Ruth Grant’s death in of the any tivities in and as a separate category: categories foregoing described the degree “When of involve- section.” compulsion descends ment to mere (b) “The on the was not or sponsorship encouragement, ques- nor it take premises, did closer, it tions become becomes neces- place during working hours.” sary bearing to consult a series of tests (c) “There no express implied re- prolific work-connection. The most illus- quirement employees attend of problem trations pic-
party, nor was attendance at the parties. Among office the ques- nics and part employees.” services tions asked are: Did (d) “The did a not derive sub- sponsor in fact the event? To what ex- parties
stantial direct benefit from the really tent was attendance voluntary? beyond intangible employ- value of some degree encouragement Was there ee morale and will common to as taking to attend such factors such social activities.” attendance, paying for the time record R., p. requiring to work if spent, No attend, entirely by employer. maintaining he did not cost Did the em- attending? paid any part known custom ees have ever to a substan- ployer finance the occasion a Christmas employees regard tial Did the party, except extent? no for the arrangements as an benefit to which employment to draw names arranged the em- right? were entitled as of Did gifts., small presentation for the event, merely benefit from the ployer and res- *3 arrangements employer made all morale vague way through in a better ervations. will, through tangible but such good advantages opportunity as an having the cost “... The deducted employer speeches make and awards?” its income tax returns parties of the from 22.23, pp. (empha- 5-85 to -86 a expense.” as business added). sis IX, R., 37. p. Fact VI and Findings of 5-71 and gone page Had the referee beyond encouragement 3. “Was there some page asked himself the found on questions taking a record attend in such factors as [a] 5-85, above, would only set forth he not attendance, maintaining a ... [d] easier, his result have found his task but attending?” custom of known with the liber- just more and in accordance is available in the refer- An answer to 3[d] declares sets the ality legislature which the findings: ee’s We examine administering tone in the Act. light the referee in of the findings the employer to “It was the custom foregoing questions: Larson for its an annual Christmas sponsor had been held parties These employees. employer sponsor 1. “Did the in fact years prior several since 1950. For This to the case law according event?” at the had been held parties singularly impor- without doubt most Club, in Boise.” Country An to that Larson question. tant answer Crane Creek Findings found in the question readily IV, p.R. 36. Finding of Fact Fact: not furnish findings of the referee do at a “Ruth Grant died Christmas readily but it is question 3[a], answer to ” . sponsored by employer, her ... supplied by documentation available from I, R., Finding p. of Fact found in the record. employer Yet, in the rather terse black- observe that death the months after Mrs. Grant’s Eleven sponsoring fact of passage, letter and did file with the employer was able to whatever, because Larson mention given no providing a statement readily con- legal may minds assumes attend, who did names of those party is sponsoring clude that (Employer’s not attend. and those who did inquiry. necessary end of all almost 7(g).) No. Interrogatory Answer tabs suffi- kept the occa- also attendance employer finance
2. “Did that since to state ciently substantial extent? well to be able sion to a annu- were held began in parties extremely important this The answer to ran thereafter, employee attendance ally is not found question (Em- percent. to 80 percent between 75 referee, there is but also found 5(c).) No. Interrogatory ployer’s Answer to question, damaging answer to an even more not attend who did the four Of of, think one Larson either failed to longer no em- party, the 1977 three as again bey^hd question believed to be so in- was later the attendance ployed when of men- worthy as not establishing liability Answer to Inter- quired (Employer’s into. tion, i.e., did the deduct 23.) No. rogatory compa- reporting as expense business profit? taxable ny’s benefit 4. “Did through event, vague way merely not presi- planned “The will, through good morale and paid better dent and was Honor, such tangible advantages having op- Your “MR. BRAUNER: wit- portunity speeches to make awards?” for a conclusion question calls have another he didn’t ness. It’s obvious question The answer to this is found in getting we’re into I think engagement. findings: referee’s areas. speculative very some purpose sponsoring to this goes I think “MR. BOYD: parties was to promote to show trying question good will and morale among required them to attend. that Brownfield ees, to foster employee relations and any- “MR. BRAUNER: I don’t think to provide an opportunity socialize and body contends that. to thank the employees for their work agree “MR. BOYD: You that he did year. The employer deducted require them to attend? the cost of parties from its income I tax returns as a “MR. BRAUNER: think that the rec- expense.” business ord’s clear there was no absolute IX, R., Finding Fact 37p. (emphasis *4 requirement that attend.” added). The finding as written leaves it Tr., p. 63-64. Brownfield, unclear whether Mr. presi- dent of It was made clear on claimant’s mo- company, again would at the party speech make a which at tion for reconsideration made after one time thanked work, Commission the referee’s decision. approved for their as contem- plated text, “Compulsion Therein the claimant stated: by the Larson or would individ- requirement to attend or a to work at a ually speak to each employee on a more is personal basis. not a decisive factor itself under Other evidence in the rec- R., p. (emphasis added). ord the law.” establishes that the employer made awards of cash party, bonuses at al- then, apparent, It becomes that the refer- though it appears also that those who could ee in the first instance not or did not attend might get later such guilty over-emphasizing the second are of awards at the company store. especially point one of factor — others, ignoring especially ignoring questions Larson which have been in further Larson speaks 22.23 which § turn set forth and answered from the ap- of encouragement. terms We do not readi- peal 22.23, record are taken from § ly grasp thought which the referee had 22.22; section section, follows another § in mind where he concluded that “[t]here 22.22 addresses only “Employer Compul- § express implied requirement” was no sion,” Larson, p. 5-83. Section 22.23 was II, R., p. attendance. Conclusion of Law written in relation to non-compulsion set- it could be surmised that he Apparently, tings, and suggests that degree “[w]hen attempted any thought thus to rule out involvement descends from employees might obliged Brownfield feel to compulsion to mere sponsorship encour- employer’s attend the agement, closer, the questions become simply The evidence does not sustain that it becomes necessary to consult a series of referee, conclusion. The had he continued bearing tests on work-connection.” 22.23, might to read on into have seen p. 5-85. In this case counsel for claimant be, “encouragement” need not and or- made no contention of outright compulsion. not, is in the dinarily mandatory form This is made clear Reporter’s Tran- which it manifests itself. script, witness, when corpo- Jones, rate employee was on the stand: hand, express require- On the other “Q. He’s asked you going about or not ment is couched in terms. An mandatory going. you If had engage- had another from the implied requirement again comes ment you go felt that wanted to you requires; mouth of he who it is not manda- to, would you feeling have had about any tory, but at the same time it carries a going to that instead to the Christmas message carry message: and it is meant to party? required “You aren’t come our party. that, I you job. said, well, wouldn’t force to do and it And I my okay. And she said, now, even so. might illegal be to do On the I’m not going go early hand, other January, the first week in we enough any highballs. have Occasion- did, will handing working ally be out the new sched- we drinking but we was not ules, probably considering pay drink, be raises. people. We would have a We think everyone finding else is time to when home from work I’d say, she’d come come.” as an example you something? Such offered want a little drink or no, language implying requirement have a say, cup She’d I’d rather employer. coffee.” Tr., p. 19-20.
Unfortunately, a great many people make no distinction between the words “im- law, Returning to Larson's black-letter ply” and “infer.” To imply language he had to fit into which the referee believed infer, however, used the implier. To Grant, mention, pause Mrs. we that the the interpretation of language or con- (a): “The evidence in referee’s conclusion duct by listener, here Mrs. Grant. The place this case does not Ruth Grant’s death referee entirely failed to consider what she described in the any categories might have inferred from the employer’s section,” serves to dem- foregoing primarily near thirty-year custom of sponsoring onstrate his belief that Mrs. Grant had to Christmas parties she did or did categorized in the black letter law. Con- —whether not know that (b): it was not all being written clusion “The Christmas was not off tax-wise as a nor did it take employer’s premises, business investment hours,” continued employee good place during working is of doubtful loy- relations and *5 alty. Brownfield, Mr. dinner validity after all the for two reasons. Christmas years Mrs. during Grant had been held work- parties ordinarily with the are not company, said hours, of her: and it is difficult to conceive that employer’s traditional Christmas dinner “Q. You considered her a loyal em- place would be held at his of business. ployee; did not? you “A. did. Sure employ- It that where an would also seem er, case, such as in this does have Christmas “Q. Does it if surprise you that she (deducti- parties company money and uses said she would be at the that she ble) premises, with which to obtain a to- would feel an obligation to come? libation, gether with its food it is no “A. I’m sure she would.” great accept premises, fiction to those Tr., p. 54. purposes, premises used such as the Claimant, on was asked cross-examination field employer. slightly In the related and answered as follows: company picnics, which Larson notes are “Q. anybody you Did ever call at (not with invariably company time so there, home and now be say, anything evening parties), dinner Larson states of that substance? em- “both the time and limits of the space “A. Not to me. wife was the My at the ployment expanded picnic-day one.” 22.23, Larson, p. 5-91 picnic-grounds.” Tr., p. (emphasis added). examination, direct the claimant had On express was no (c): “There Conclusion remembered: attend implied requirement Well, “A. she came home from work was attendance at nor party, getting and she was dressed and I was employees,” services of the part of the Dad, I changing says, clothes and she my an it was not referrable to tonight. don’t want to to that dinner go attend, and infer- Encouragement issue. draw properly employee might an
ences and a relationship work long from a time to either and “A. I said I didn’t want was parties long time custom Christmas said, well, part it’s got go, she I’ve
547
Co., Md.
issue,
245
but was
In
v. Retail Credit
upon
not touched
Sica
—the
case,
resolution of which
a recreational
gone
(App.1967),
could
have
A.2d
against
swimming
the employer on the record we see.
while
injured
was
employee
picnic.
annual
sponsored
(d):
Conclusion
did not
No business
voluntary.
Attendance
derive a substantial direct benefit from the
any speeches
was transacted nor
parties beyond the
of em-
intangible value
Nonetheless, it was deter-
outing.
at the
ployee morale and
good will common
encouraged and
mined that
activities,”
such social
referrable
employee
the formation of an
authorized
black-letter law
employee
confirming
activities, paid all
committee and its
picnic
morale and
recognized
will are
as sub-
them
picnic,
and deducted
expenses
stantial benefits.
pur-
for income tax
expense
as a business
While
may
black-letter
law
some
facts,
these later
poses. On the basis of
in reaching
aid
conclusions of law in a case
the oc-
testimony
connection with the
which is of
we
impression,
first
also look
promoted
casion
the enthusiasm which was
jurisdictions.
the law of other
necessary
element in the
ser-
One of the more lucid
opinions
business,
coverage
vice
the court found
be-
regard
Case,
decision Moore’s
cause “the
derived substantial di-
Mass.
N.E.2d
The court
” 227
activity
rect benefit from the
.. ..
injury
stated that an
or death of an employ-
A.2d at 40. The
decision is cited as
Sica
ee will be deemed compensable where the
in two other
cases.
authority
Maryland
attendance
employee’s
employer-
at
Trucks,
Miller,
Md.App.
Mack
Inc. v.
sponsored social activity
logical
in some
affirmed, 275
(Spec.App.1974),
the policy
‘by
now before
suffered
to the case
drawn
must also be
Attention
reason of and in the course of duties as a
Keller,
St.2d
23 Ohio
Kohlmayer v.
”
Company.’
member of said Fire
in Kohl-
(1970). The court
263 N.E.2d
“The
constitute
plant during
was held in the
and,
Kohl-
as the
period usually
purposes
for income tax
for work and for
reserved
observed, ‘[t]angible
which the
business
employees
actually paid.
mayer
were
court
While the
to be real-
party may
likely
not be classified as
are even more
benefits
an expressed
performance’
where,
here,
‘command
a small business is
ized
the employees, one can
con-
certainly
Thus,
agree
we
with
involved.’
Id.
clude,
commission,
as did the
their
may
that benefits
accrue to
proposition
attendance was expected.
testimony
social affair.
purely
giving rise to that inference rests on the
233;
at
Ricciardi v.
Id. at
263 N.E.2d
facts that
the weekly paychecks and the
45 N.J.
211 A.2d
Damar Prods.
given
bonus checks were
to all of the
(1965); Hill v. McFarland-Johnson
one of the
by
25 A.D.2d
269 N.Y.S.2d
Eng.,
London brothers.
all em-
Additionally,
(1966).”
ployees and the three brother-employers
at 923.
A.2d
noted,
attended. As one court has
‘[l]it-
regard,
emphasized
In this
it is to be
eral compulsory
compa-
attendance at the
we
of fact entered
accept
findings
all of the
ny’s affairs would not
produced
have
confirmed
by
approved
the referee
and
and
* *
desired
enthusiasm
*.
It
Commission, as well as the
by the Industrial
would not be realistic to find that respon-
be-
undisputed fact
that claimant’s wife
dent’s complete
[party]
control of the
and
par-
lieved her attendance at the Christmas
inducement
to the
ty was
In instances such as
obligatory.
wages without work while
enjoying
this,
the Industrial Commission’s conclu-
greater
affair did not constitute a far
sions of
are not
law on the issue before us
more effectual compulsion upon the em-
As was stated in the
necessarily binding.
ployees” than
attendance.
mandatory
492, 496, 511
case of In re
Haynes,
Kelly v. Hackensack Water
10 N.J.
(1973):
P.2d
528, 536,
(1950).”
Super.
77 A.2d
in this case arises over
problem
relationships, activities, compensation, we are of the do result from such create a favor of
551
was the issue before
That
opinion
findings
employment.
that the
of the Industrial
case, the Industrial Com-
Accident
this
supported by
Board are not
factfinder
is whether
appeal
on
record.
the order entered
issue
Accordingly,
mission.
competent
the Board
claimant benefits
evidence
denying
and
is substantial
there
as the
is reversed and
the Industrial Com-
surviving widow
support
record to
in the
for
with
disposition
remanded
consistent
“the acci-
finding that
ultimate
mission’s
opinion.”
the death of Ruth Grant
caused
dent which
in the course of her
out of and
did not arise
or
undisputed,
Where evidence in a case
employment.”
so,
virtually
presented
of law is
question
as to whether the Industrial Accident Board
of and in
injury arises out
Whether
the law to
proper application
has made
is a factual issue
employment
the course
CONST,
5,
Ledes-
the facts.
ID.
art.
9.§
the Industrial Commission
to be resolved
555,
Costs
claimant.
grievous
injury,
regardless
and
cause
personal feelings
on
of our individual
McFADDEN,
HUNTLEY,
J.,
J:
decided, we
should have been
how a case
(retired), concur.
weigh
the evidence or
are not entitled
judgment
substitute our
make
Justice,
BAKES,
dissenting.
the commission.
for that of
by incor-
begins
opinion
majority
to be decided
misperceiving the issue
by this
the issue to be decided
rectly stating
majority, contrary
appeal,
on
accidental
as follows: “Does
Court
on our review of
limitations
em-
constitutional
occurring at an
of an employee
death
findings, usurps
arise out
Industrial
ployer-sponsored
func
factfinding
Industrial Commission’s
employment
and in the course
that Mrs. Grant’s accident
com-
and finds
workmen’s
tion
an award of
purposes of
scope
and in the course
How-
arose out of
Supra
benefits?”
pensation
finding
of ulti
This is
employment.
her
ap-
on
decided
ever,
the issue
trier of fact
by the
mate fact to be decided
in-
Grant
Mrs.
whether
peal
is not
Re
appeal.1
than
this Court
scope of her
rather
while in the course
jured
Gray
Brasch & Miller
Sup.Ct.1983);
recently
ho
inclined to
has been
1. This Court
(1981);
The majority’s argument
that
the “black
The resolution of factual matters is com-
letter” rules set out at
22.00 apply only to
§
mitted to the expertise of the Industrial
recreational activities is further negated Commission, which specializes
hearing
in-
when one
complete
views the
text of section
dustrial accident cases. See Dawson v.
22. The introductory phrase pointed
by
Hartwick,
(1967);
91 Idaho
N.E.2d 208 Ethan v. Franklin
Co., (1970); 286 Minn. 176 N.W.2d Wert, (Sup.Ct. v.
Sills N.Y.S.2d
1955); Tally Newberry v. J.J. 252 N.E.2d
N.Y.2d 305 N.Y.S.2d
634(1969); Stojak Compensa v. Workmen’s Board, Appeals
tion 57 Pa.Cmwlth. Mut. (1981); Campbell Liberty
A.2d 229
Ins.
(Tex.Civ.App.1964).
However, these cases do not reflect a
split excep- With few authority. very hours, particu- and it is difficult to conceive that the 2. order to counter the effect of finding, lar which Larson’s treatise lists as one traditional Christmas dinner place important held at his of business.” Ante criteria for the factfinder would be consider, majority engages nothing fact- some in the record to There is own, majority’s factfinding regarding finding finding support of its that “Christmas din- parties. parties ordinarily ner work- are not held