272 N.W. 340 | N.D. | 1937
The plaintiff, a farmer, was employed by the county of Morton in 1935 on Project No. 88 under the Federal Emergency Relief Administration, the employees being protected by workmen's compensation. When called upon he furnished his own labor and horse power to operate a fresno, driving to his work in a wagon. His hours were from 8 A.M. until 5 P.M., beginning with his arrival at the job and ceasing when the work stopped, with lunch hour off. His pay was 40c an hour for his own work and 50c an hour for the horses.
Plaintiff worked under the supervision and direction of a foreman, and because of a superfluity of labor, the foreman told him when to come to work. Plaintiff selected the horses himself and worked them himself. He furnished the feed and stable room, the same as he did on his farm.
On March 21 he lived about three miles from where the work was being done. When the work ceased, he started home. While on the public highway — the direct road to his home — and about a quarter of a mile from the place of employment, he was injured by being thrown from the wagon through sudden action of the horses.
The bureau denied compensation and the matter was litigated in the district court. Judgment was rendered in favor of the plaintiff and the defendant appeals.
Appellant says, "the sole issue is whether . . . the claimant . . was injured in the course of his employment. . . ."
There is significance in the use of the word "only," and clearly the *336 legislature had a purpose in its use. Coming to work, returning from work, leaving the place of employment for lunch intending to return immediately thereafter are acts incidental to the employment and having a causal connection therewith, even after the actual work has ceased. Clearly the legislature intended to eliminate such as it limits the injuries to those which arise inthe course of employment.
There is a distinction between injuries which grow "out of employment" and injuries sustained "in the course of employment." Stakonis v. United Adv. Corp.
When employee's hours of labor have ended, the daily work for which he is paid done, and he has left the place of employment, a subsequent accident is not "in the course of employment." This phrase refers to time, place and circumstances under which the accident occurs. Herald Printing Stationery Co. v. Industrial Commission,
But "course" may cover all the period between entering the premises and leaving the gates. Butler's Case,
There is the period of employment; place, the designated location of the work; and work is such as the employee may reasonably do in connection with the purpose of his employment or incidental thereto. Ryerson v. A.E. Bounty Co.
An injury occurring "within the period of his employment, at a place where he might reasonably be, and while he was reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it" perforce arises out of the employment; but the range of injuries in the latter class is greater. "An injury arises out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or of the conditions under which it is carried on. Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment." Marchiatello v. Lynch Realty Co.
Plaintiff cites Speas v. Boone County,
In the Minnesota case the facts are quite similar to those of the Nebraska case; in fact, the Minnesota court cites the Nebraska decision as authority. In the Minnesota case the court held that as this accident happened during the part of the day in which he was employed and, on what the court holds was, by extension, the premises of the employer, and as the workman was to continue his work in the afternoon, the injury received arose out of and in the course of employment.
The Minnesota court differentiates the case under consideration from its former decisions of State ex rel. Jacobson v. District Ct.
In the Jotich case the workman furnished his own team and during the lunch hour he drove to his home a mile distant for lunch and to feed his team. As he was unhitching, the team started suddenly, pulled the wagon upon him, and caused an injury. The court there held that such "accident did not arise out of and in the course of his employment."
In the case at bar it was not during the lunch hour even that the injury was received, but after his employment had ceased. There is respectable authority which would uphold allowance of compensation for injuries received while taking care of a team owned and furnished by the workman when the injury was received during the period of employment; but in the case at bar the period of employment was for definite hours and no injury was received during that period.
Respondent says, "It is admitted that under the general rule of law an employee is not entitled to compensation for injuries received while he is going to or from work." This is the rule in this state.
In Pillen v. Workmen's Comp. Bureau,
However, there is a limit to these acts growing "out of the employment." In Whitney v. Hazard Lead Works,
In the case at bar none of these applies. Plaintiff's employment began at 8 A.M. and ceased at 5 P.M. Under the rules he could only work eight hours in the day and his employment had ceased. The injury did not occur during the time of his employment. Neither did the injury occur "while he is reasonably fulfilling the duties of his employment." His employment was to drive his team, attached to the fresno, during the hours of employment and at the project. Neither can it be said that the injury occurred "in a place where the employee may reasonably be," because this means in the place of employment or connected with the employment or where his employment calls him to be. He was on the public highway going home from his work. So far as the employer was concerned, it was immaterial *340
whether he walked, or rode, or was transported by a fellow workman. His method of reaching his employment, where he stabled his horses outside of the hours of employment, or how he handled them during that time were entirely foreign to his employer. The employer had no control over it, direct or indirect. Had the workman been injured while walking home, there would have been no question raised. But it is said the employer must have known he had to bring his horses and take them back, that he had to feed them and stable them. It is true horse power was hired, but the employer had nothing to say about the selection of the horses, how they were handled, or where they came from or were kept, or what became of them. As pointed out in Pillen v. Workmen's Comp. Bureau,
It is clear the injury did not occur "in the course of employment," and as this is the only kind of an injury for which compensation is provided, the judgment is reversed and the action is dismissed.
CHRISTIANSON, Ch. J., and NUESSLE and BURKE, JJ., concur.
MORRIS, J. I concur in the result. *341