250 N.W. 679 | Minn. | 1933
The plaintiff was employed by the county as a maintenance man to gravel and keep in repair a stretch of county road six miles in length a few miles out of Montevideo. He worked with his team of mules and without much immediate supervision. He lived on a side road three-quarters of a mile from the road on which he was employed. He occupied a farm-house and barn and adjacent yard but did not cultivate the land. He furnished his team and the gears of a wagon at fixed wages for both. The dumping planks for the wagon were furnished by the county. He kept the dump-wagon where he lived and also kept there machinery, tools, and supplies owned by the county for road use. It is inferable that there was no proper place to keep them on the section of road which he kept in repair; they could not be left prudently on the road; they had to be kept somewhere, and so the place where he lived was used by the county in a small way as a depot or place of storage and of occasional repairs or other work.
On April 20, 1932, the day of the accident, the plaintiff drove from the road which he maintained to the place where he lived to feed his team and have his dinner. It was 15 minutes before noon, but a convenient time. He had just finished hauling a load of gravel and was to continue hauling in the afternoon. The place of supply was a few miles distant, and there was not time to haul another load before noon. He proceeded to unhitch his team preparatory to taking them into the barn, and, just as he was finishing, one of the mules kicked him and caused the injuries for which compensation was allowed.
The statute provides that "compensation * * * shall be paid by every such employer, in every case of personal injury or death of his employe, caused by accident, arising out of and in the course of employment." 1 Mason Minn. St. 1927, § 4269. *629
1 Mason Minn. St. 1927, § 4326 (j), provides:
"Without otherwise affecting either the meaning or interpretation of the abridged clause 'personal injuries arising out of and in the course of employment.' It is hereby declared:
"Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service, at the time of the injury, and during the hours of service as such workmen; provided, that where the employer regularly furnishes transportation to his employes to or from the place of employment, such employes shall be held to be subject to this act while being so transported, but shall not include an injury caused by the act of a third person or fellow employe intended to injure the employe because of reasons personal to him, and not directed against him as an employe, or because of his employment."
The only question is whether the accident to the plaintiff arose out of and in the course of his employment; or, stating it otherwise, whether he was employed by the county at the time of his injury. If he was in the employment of the county within the meaning of the compensation act, there is no question but that the accident arose out of and in the course of such employment.
There are three cases having similar facts. State ex rel. Jacobson v. District Court,
The case before us is one of difficulty. The employer's position is that the decision as a matter of law should be in its favor. This is the question.
In the Jacobson case,
In Jotich v. Village of Chisholm,
In the Rosvall case,
Section 4326(j) is not a usual provision. It is practically identical with Nebraska Comp. St. 1922, § 3075(c). In Speas v. Boone *631
County,
Section 4326(j) is not to be given a too restricted construction either as to hours of service or the premises of the employer. Simonson v. Knight,
It may be said fairly that the usual hours of work of the plaintiff were from seven in the morning until noon and from one in the afternoon until six. The plaintiff says that he counted hours from the time he took his team from the barn until he had it back in the barn. His construction upon this point is not controlling.
The county did not have premises in the sense that a factory has. One working on the road was on its premises within the meaning of the statute. It may have had a sort of plant or warehouse somewhere where it kept its equipment. This is not shown. It did not *632 own the yard about the house where the plaintiff lived; nor did the plaintiff own it; but he was in occupancy of it, and to that extent it was his. The defendant used the yard as a place where it kept some part of the county road equipment. The plaintiff had charge of it when it was there and on occasion repaired it or put it in condition for use. The dump-boards owned by the county were kept there — perhaps a circumstance of only slight significance. The road grader and other equipment was there. The county furnished grease with which the plaintiff greased machinery in his yard. To a limited extent the county used the yard as its premises. It found it useful for road purposes.
The conclusion is that it cannot be held as a matter of law that at the time of the accident the plaintiff was not working in the employ of the defendant.
The employe is allowed an attorney's fee of $100 in this court.
Order affirmed.