Cеrtiorari to review an order of the Industrial Commission determining that an employee suffered a personal injury arising out of and in the course of his employment and granting his petition for compensation.
Peter Jonas, employee-respondent, had been an employee of the St. James Hotel of Red Wing, Minnesota, for approximately 21 years at the time of his injury. The general nature of his work had been to take care of the furnace and boiler at the hotel and to do general maintenance work around the hotel during the day, such as repairing doors, windows, screens, etc. The record indicates, however, that the emplоyee’s primary responsibility was to take care of the furnace. From approximately November 15 to April 1 the hotel employed another man to maintain the furnace from 6 p. m. to 6 a. m. From April 1 to June 1 and from September 15 to November 15, each year, Peter Jonas was solely responsible for the maintenаnce of the proper heat in the building, and during the summer months from June 1 to September 15 the furnace was shut off. However, Peter Jonas continued his regular employment at the hotel doing maintenance work on the furnace and around the hotel.
The Industrial Commission found that employee’s normal hours of work were from 7 a. m. to 6 р. m. daily with the exception that during the summer months his hours were from 7 a. m. to 4 p. m.
The injury for which employee seeks compensation occurred shortly after midnight on April 26, 1961, at which time he was struck by an automobile while crossing an intersection on his way home from the hotel. On the day preceding the night of the accident employeе began his work about 7 a. m. After completing his normal maintenance functions on that date he left the hotel about 6 p. m. He went directly home, had his dinner, and then went out to a farm which he owned in the vicinity of Red Wing. He stayed on the farm about 2 hours. At about 8:30 he noticed that the weather was turning chilly and this prompted him to make a trip back to the hotel for the purpose of turning on the furnace. He then took a walk to Nybo’s Bar, watched bowling until about midnight, and then went back to the hotel to shut off the stoker, not wanting the furnace left unattended all night. He immediately started for home, and as he crossed the street intersection in front of the hotel he was struck by аn automobile and sustained the injuries which gave, rise to this proceeding.
The question involved on this appeal is whether the injury occurred while the employee was returning home from a special mission for his employer and thus arose out of and in the course of his employment.
In construing the provisions of the Workmen’s Compensation Act it is always to be kept in mind that the act is highly remediаl and should not be construed so as to exclude any employee from the benefits thereof unless it clearly appears that he does not come within the protection of the act. Kiley v. Sward-Kemp Drug Co.
It is well recognized by our decisions that an injury to an employee in going to or returning from the employer’s prеmises where his employment is carried on would not arise out of his employment and entitle him to compensation under the act. Youngberg v. The Donlin Co.
It appears that the so-called “special mission” or “special errand” doctrine was first applied in this state in Nehring v. Minnesota Min. & Mfg. Co.
In the Nehring case the employee had responded to some 25 emergency calls in 1932 up to June 12, the date of the fatal accident. He had been paid for such work $1 plus the regular wages for аny time spent in excess of 15 minutes. This court indicated that that arrangement lent some force to the inference that the dollar was in part for the time going and coming and held that at the time of the injury the employee was in the course of his employment and thus the injury arose out of it. This court cited and discussed with approvаl the case of Reisinger-Siehler Co. v. Perry,
“The record does not disclose any express agreement between him and his employer relative to the duties that he was to perform, or the remuneration he was to receive. Under his regular employment, his duties were to remain at the store during the day; but, in addition to this, he was, as we have said, when at home, subject to further duties when called upon. The times when these duties were to be performed were uncertain, as he was to go to the store only when unusual conditions existed there. What he was to do and the length of time he was to remain there were equally uncertain.
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“There was, we think, an implied agreement, from the nature and character of the employment of the claimant in the performance of the additional duties, that his employment was not to be restricted to the time in which he was at work at the store on such occasions. It was in the nature of an errand or mission on behalf of his employer, and when so treated his employment commenced at the time when he left his home to go to the store, and ended when he returned to his home. ”
Kyle v. Greene High School,
“* * * an emergency with reference to the lights had arisen at the schoolhouse. The janitor had completed his services for the day. In response to the call, he startеd in the performance of a special service or errand which was incidental to the nature of his employment and in the interest of his employer. He, as the employee, had the right to comply with the request for the special service. His going to perform the service was not personal to himself, but was incidental to his employment, and in the interest of his employer.”
This court has applied the special mission or errand rule in Bengston v. Greening,
The relators herein, employer and insurer, cite the following cases as controlling in their favor: Otto v. Duluth St. Ry. Co.
We are not cognizant of any clearly defined guidelines to follow when it comes to determining whether a particular factual situation falls within a special mission or errand doctrine. In Youngberg v. The Donlin Co.
supra,
Mr. Justice Murphy outlined the instances in which this doctrine has been applied (
“* * * it has been applied wherе (a) there is an express or implied request that the service be performed after working hours by an employee who has fixed hours of employment; (b) the trip involved on the errand be an integral part of the service performed; and (c) the work performed, although related to the employment, be special in the sense that the task requested was not one which was regular and recurring during the normal hours of employment.”
We do not find from the record any express request by the employer to the employee in the instant case to perform the service of turning the furnace on or off on those nights when necessary to maintain proper heat between April 1 and June 1 and from September 15 to November 15 each year. It seems clear, however, and the Industrial Commission so found, that a duty was in fact implied, for the employee was solely responsible for turning the furnace heat on and off during the foregoing periods; therefore the performаnce of this function by the employee appears to have been taken for granted by both employer and employee.
The dominant consideration is whether the service which employee performs is after working hours and one which was neither regular nor recurring during his normal hours of employment.
Relators contend that on the evening in question employee had been engaged in nothing more than a normal daily employment function. They point out that employee testified that he would leave the hotel at 5 p. m., have dinner, and then return to the hotel; that he did this every night, 7 days a week, until the temperature was such that furnace hеat became unnecessary. They also argue that the employee had testified that he did not consider his working hours to be through at 5 or 6 p. m. and that thus the employee was not “performing the type of ‘emergency work’ considered in the Nehring case during the night he was injured, nor can it be said that at that time he was on a ‘special errand’ or ‘special mission’ for his employer in accordance with the rule of the Bengston case.” Employee, however, points out that he testified that when it was warm he would turn the heat off before he went home at 6 p. m. and that sometimes it would get cold and he would have to return to the hotel, as was the case оn the night preceding the accident, and turn the heat back on. Employee further argues that the weather determined whether or not he had to go back to the hotel and that during the two months in the spring, when the night furnace man was off duty and the furnace was still on, he would have to go back to the hotel about 10 times.
Whether the employee’s returning to the hotel after his normal daily working hours constituted a normal function of his regular job must be to some extent based upon the numbеr of nightly returns which he was required to make during the period the night furnace man was off duty, in the spring and fall periods, and is, in our opinion, a question of fact. We must sustain the findings of the Industrial Commission on that issue if there is a sufficient basis in the evidence and the inferences to be drawn from the evidence to support such findings.
It is our view that there is somе evidence to support either position but ample evidence to support the fact findings of the Industrial Commission. Therefore it would be our duty to affirm even if we did not wholly agree with the findings. The determination of questions of fact is for the commission. See, Casey v. Northern States Power Co.
The finding by the Industrial Commission that there was an implied agreement to care for the furnace when necessary clearly brings that issue within Reisinger-Siehler Co. v. Perry, supra, and other сases considered in this opinion. We think that the commission was justified in finding that the employee herein was not engaged in daily, regular, recurring trips to the hotel after normal hours but that those trips were in the nature of special errands or missions and that the injuries suffered by the employee thus arose out of and in the course of his employment.
The order of the commission is affirmed with $250 attorneys’ fees awarded in favor of respondent.
Affirmed.