33 P.2d 113 | Idaho | 1934
Lead Opinion
This proceeding was instituted by respondent, Jessie MacKenzie, to recover compensation for the death of her husband. On June 9, 1932, and for some years prior thereto Niel MacKenzie, deceased, had been employed by appellant, Oregon Short Line Railroad Company, in the operation of a generator plant in which acetylene gas was generated and conducted by pipes to the various shops of appellant company in its yards at Pocatello, Idaho. At the side of the generator plant building there was located a sump or sludge pit into which the refuse from the generators was carried by means of a concrete conduit from the inside of the building. For a period of about nine years, and up until November, 1931, it had always been a part of Mac-Kenzie’s duties to clean out the sludge pit at intervals of about one month, which cleaning work was done by running water and steam into the pit from the generator plant, and
There is but one real question for decision in this case: Did the accident which caused. the death of the deceased, Niel MaeKenzie, arise out of and in the course of his employment ?
Appellant has made various assignments of error, but the answer to this one question is decisive. Appellant tabes the position that the deceased had been relieved of his duty of cleaning the sludge pit several months prior to the time that he met his death; that on the 9th day of June, when he slipped and fell into the pit, which caused his death, he was not performing any duty in connection with his employment, but came to the pit solely for the purpose of satisfying his own personal curiosity, and not while he was reasonably fulfilling the duties of his employment or something incidental to it. That portion of the findings of fact of the board, which are pertinent and material to a determination of the question before us, are:
“V.
“ .... that after the emptying of said pit or sump was taken over by the ‘store department’ it was the custom of Neil MaeKenzie, now deceased, to help the laborer to whom was assigned the task of emptying the pit, to pass the rubber hose out through the opened doors and to turn on the water;
“VI.
“That on the 9th day of June 1932, the laborer of the employer, Oregon Shortline Kailroad Company, to whom the task of emptying the pit was usually assigned, was instructed to empty the pit; that he thereupon opened the two trap doors over the east half of the said pit by laying them bottom up on top of the doors covering the west half and with the assistance of the said Neil Mackenzie, now deceased, put the water hose into the pit and had the said Mackenzie turn on the water, turned'the steam into the pit and started the pump and proceeded to empty the pit; that after the pump had run for some time the said Neil MacKenzie, now deceased, came out of the generator building toward the sump and talked with the said laborer for a minute or two about how it was working, looked at the sump and then returned to the generator building; that at said time the pump was located west of the sludge tank, opposite the trap door covering the southwest quarter of the tank and its runner just touching the west walls of the tank; that after said pump had been operating about an hour it became dry for want of lubrication and started to jump and jerk and in order to get oil to lubricate the pump the said laborer left it operating and went to get some oil at an oil house which was located at a distance of about fifty yards from the generator plant and on said errand was gone for a period of more than five minutes; that during the time the said laborer was away from the pump on his errand the said Neil Mackenzie, now deceased, came out of the generator building, went toward or by the running pump, stepped on the trap
“VII.
“That the death of said Neil Mackenzie was the result of personal injuries by accident arising out of and in the course of his employment with the defendant, Oregon Shortline Railroad Company.”
It is to be noted that that part of finding number V, above quoted, is but a general finding of fact to the effect that from the time the task of cleaning the sludge pit was taken from deceased he was always greatly interested in the method used and its efficiency in emptying the same. The board has not stated in finding number VI, or anywhere else in its findings as to the particular reason or cause that prompted the deceased to leave the generator building on the 9th day of June when he went out to the pump and sludge pit and met his death. Rasmus Knudsen, the employee whose duty it was to operate the pump and empty the pit, had temporarily left the scene for the purpose of obtaining oil for the pump, which had gotten hot and was jumping and jerking for lack of oil. Appellant argues that by reason of the general finding made by the board in finding
It is most seriously contended on the part of appellant, that the contention made by claimant that the deceased went to the pit for other purposes than to satisfy his personal curiosity is conclusively foreclosed by findings numbers Y and VI of the board and the statement made by deceased to K. H. Smith, claim adjuster for appellant, to which he testified as follows:
“I went in and saw Mr. Mackenzie and asked him if he were able to tell me how he happened to fall into the pit, and he told me that he went out of the side door at the plant where he worked and went around to the west side of the sump where the pump was located, and he was curious and anxious to see how the pump was working, as they were using a different method than they did at the time that he cleaned the sump out himself. He said that he was anxious to see whether they were going to be able to get to the bottom of the sump. He said after he had looked at the sump he then turned and stepped up onto the top of the closed portion to look down to see how near they were getting to the bottom of the sump, and as he did so his feet slipped out from under him and he slid into the sump. He said that he went under the fluid in the sump two or three times before he could get hold of anything. Then he stated that he got hold of the steam pipe located in the southeast corner of the sump and tried to pull himself out, and while he was in the act of trying to get out of the sump that somebody came and pulled him out.”
And the further testimony of Mrs. George Bice, daughter of the deceased, as follows:
“A. Yes.
“Q. And what did your mother reply?
“A. She told him just exactly what Dad told her, that he went to see how the work was coming and that he slipped and fell-in.”
With reference to these statements so strenuously relied upon by appellant, it is to be noted that the voice of Mr. MacKenzie has been stilled by death and he is not here to state his version of what was said and done. The alleged statement made to Mr. Smith took place about 5 o’clock in the afternoon of June 9th, Mr. MacKenzie dying about 9 :45 that evening, so that the alleged statement -was made but a few hours before his death, at a' time when the burns which he sustained not only most seriously affected his body, but may have affected his mind as well. With reference to the statement made by Mrs. Bice, above quoted, as we view it, it is not inconsistent with a reasonable inference that could be drawn therefrom that her father ivent to the pit merely as an observer, or an inference that he went there to do something in the furtherance of his master’s business. Claimant herein, the wife of deceased, specifically denies that she made any statement of any kind to Mr. Smith, as to what her husband had told her as to how the accident happened, except that she told him that her husband stated, “that he slipped and fell in.” With reference to verbal admissions, it is the law that the same should be received with caution and subject to careful scrutiny, since no class of evidence is so subject to error' or abuse. In 3 Jones Commentaries on Evidence, 2d ed., sec. 1070, p. 1969, referring to this particular class of evidence, it is said:'
“It is an even more familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more' subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are
In the final analysis it was for the board to decide the value and credit to be given this testimony. (Tieman v. Red Top Cab Co., 117 Cal. App. 40, 3 Pac. (2d) 381.) If the deceased left the generating plant at the time in question and went to the pump and pit merely as an observer and to satisfy his curiosity, then he was not reasonably fulfilling any of the duties of his employment, or doing something incidental to it, and under Murdoch v. Humes & Swanstrom, 51 Ida. 459, 6 Pac. (2d) 472; Walker v. Hyde, 43 Ida. 625, 253 Pac. 1104; Zeier v. Boise Transfer Co., 43 Ida. 549, 254 Pac. 209, claimant would not be entitled to recover. But not every slight deviation from an employee’s duty will deprive him or his dependents of the right to compensation under the compensation law. (Stralton v. Interstate Fruit Co., 47 S. D. 452, 199 N. W. 117.) In 1 Iionnold on Workmen’s Compensation, sec. 114, p. 396, it is stated:
“If a workman depart temporarily from his usual avocation to perform some act necessary to be done by some one for his master he does not cease to be acting in the course of his employment. lie is then acting for his master not for himself. A rule of law which in such case would put an employee outside his usual course of employment, and so deprive him of his right to compensation for an injury suffered would punish energy and loyalty and helpfulness and promote sloth and inactivity in employees. It would certainly prove detrimental to industry, and such a spirit of disregard of the master’s interest, if carried into all of the work, would in time cripple the industry. Besides, the rule would be impractical. One trade must occasionally overlap another, if the work is to go on expeditiously and productively. On the other hand, when the injury, though arising out of a risk of the business, if received while the employee has turned aside from his employment for his own purposes, and is not acting within the scope of his employment, no compensation can be given. ’ ’
The judgment of the district court is therefore reversed, and the cause remanded to the Industrial Accident Board for the purpose of having the board make a specific finding as above noted, and conclude accordingly.
Costs awarded to appellant.
Dissenting Opinion
Dissenting. — The foregoing opinion contains the following statements:
“If the deceased left the generating plant at the time in question and went to the pump and pit merely as an observer and to satisfy his curiosity, then he was not reasonably fulfilling any of the duties of his employment, or doing something incidental to it, and under Murdoch v. Humes & Swanstrom, 51 Ida. 459, 6 Pac. (2d) 472; Walker v. Hyde, 43 Ida. 625, 253 Pac. 1104; Zeier v. Boise Transfer Co., 43 Ida. 549, 254 Pac. 209, claimant would not be entitled to recover.”
“What was the object or purpose of Mr. MacKenzie going to the pump and pit at the time when he met with the accident? Why did he go there? If he went there merely to satisfy his own curiosity the claimant cannot recover. ’ ’
By the foregoing statements the opinion shackles a laborer closer to his task than is intended by the Workmen’s Compensation Daw. The evidence shows the pit, into which MacKenzie fell, was on'the premises of his employer and immediately adjacent to the generating plant where he was employed. This court said in Burchett v. Anaconda Copper Min. Co., 48 Ida. 524, 530, 283 Pac. 515, 517:
“By the great weight of authority injuries sustained by an employee upon premises owned or controlled by his employer, are generally deemed to have arisen out of and in the course of the employment.”
“It is essential to the right to compensation that the injury shall have been received in the course of the workman’s employment; that it shall have been received while he was doing some act reasonably incidental to his work. An accident or injury is so received where it occurs while he is doing what a man in like employment may reasonably do within a time during which he is so employed, and at a place where he may reasonably be during that time ‘Course of employment’ includes acts in which the employer has acquiesced, though they are not done in a strict performance of the employee’s duties. An employee is not, like a part of a machine operated by him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment.”
We again quoted that text in Murdoch v. Humes & Swanstrom, 51 Ida. 459, 464, 6 Pac. (2d) 472, 473, and further said in 51 Ida. 459, 466, 6 Pac. (2d) 472, 474:
“An accident arises ‘in the course of the employment’ if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.”
In the foregoing opinion it is said:
“The board failed to make a specific finding as to this most important fact, which it should have done, as to why MacKenzie went to the pit when he was injured, if the evidence is sufficient upon which such a finding can be made, and from the record we believe the evidence is sufficient to justify such a finding either one way or the other. ’ ’
Instead of making the finding of fact, which the Industrial Accident Board failed to make, and which this court believes the evidence before it is sufficient to justify, the case is, by this decision, at the expense of the litigants and the
