196 P. 853 | Utah | 1921
This is an original application to this court for a writ of
One Edith Bohling made application in due time and form to the Industrial Commission of Utah, hereinafter called Commission, to obtain compensation for the death of her son, one Charles Brandley, who was 14 years and 10 months of age at the time of his death. The Commission awarded the mother compensation as a partial dependent in the sum of $7.71 per week for a period of 312 weeks, and, in addition thereto, the sum of $150 for funeral expenses. 'The award was based upon the decision and findings of the Commission. The decision reads as follows:
“It appears that Charles Brandley was killed in an accident on the 11th day of August, 1920, at Murray, Utah. Decedent had been employed hy the defendant Twin Peaks Canning Company for several weeks, his work consisting of caring for the cans in the capping department on the main floor. About the hour of 11:30 a. m. the machine had stopped, and for some purpose the deceased left his place of work, and, using the freight elevator, ascended to the next floor, and, in watching another hoy descend in a like manner, playfully shut off the power of the elevator, causing the elevator to stop between the first and second floors. The decedent climbed to the second floor and turned the power on. The elevator ascended at once and crushed the decedent. It is alleged by the applicant, Edith Bohling, that she is the mother of the decedent by a former marriage1; that subsequently she was married to Joseph Bohling and maintained a home in which the decedent had lived for the past seven years; that all earnings of the decedent, both in the past and at the time of said accident, were given to the applicant and used for herself and family’s support.”
"While the findings of fact in substance follow the decision, yet the findings are very general, merely indicating when and where the accident occurred, the average weekly wage earned by the deceased, and that the applicant was “partially dependent upon the deceased.” In the so-called conclusions of law, after fixing the amount to be paid, etc., the Commission further says:
*592 “It appears that the employes were cautioned against using the elevator except under condition which the work demanded and then only hy boys whose work required it. However, this rule does not appear to have been enforced; also that not only the decedent, but other boys, used the elevator to go to the second floor; also that they left their post when the machines were stopped during working hours. This practice was indulged in to such an extent as to suggest common practice. The Commission concludes that the decedent was within the course of his employment at the time of the accident, although he may not have been doing that which his employment required, but that which his employment permitted and allowed. The question of whether or not the decedent had business in going to the second floor is not now a matter that can be definitely determined. It does appear, however, that he had made the trip before for the purpose of talking to a friend; also that he sometimes ate his lunch on said floor.”
It is not easy to understand, why the foregoing statements are incorporated into the so-called “conclusions” of the Commission. It is, however, immaterial what the statements or findings of the Commission are called, and we have inserted them here only for the purpose of showing what induced the Commission to make the award in this ease.
The facts, in substance, are as follows:
Charles Brandley, hereinafter called the deceased, entered the employ of the Twin Peaks Canning Company, hereinafter called canning company, on the 21st day of July, 1920. The canning company operated a canning establishment composed of a two-story building, and the deceased and his “chum” Alvin Mitchell were working on the first floor while several other boys were working on the second floor of the establishment. There were perhaps a dozen or fifteen boys engaged in the establishment. It was the duty of the deceased and Mitchell to “catch’'’ the cans after they were filled with vegetables in the canning room on the second floor when the same were passed down to them by gravity by means of what is called a “chute” and to place the cans at a place indicated for them on the first floor. There was an electric elevator connecting the two floors which was used to take the empty cans as they arrived at the canning establishment to the sec
There is evidence in the record that the boys on the first floor were forbidden to use the elevator, and that only a few
While the case is not one, therefore, that it can be said that the canning company encouraged or authorized the use of the elevator for the purpose for which the boys were using it, yet the nature and frequency of the use were such that the commission was authorized to infer from the evidence that the canning company either knew or should have known that the boys were using the elevator to pass from the first to the second floor, although they could have passed between the two floors by means of a stairway which was intended for that purpose.
We remark that, in view of the many leading questions that were propounded to the witnesses both by the referee and by counsel representing the several parties, it has been somewhat difficult to make a statement within the limits of an ordinary opinion which would thoroughly reflect all of the peculiar shades, respecting the facts and circumstances. From a careful reading of the statements of all of the wit
Counsel for plaintiffs insist that, in view of the evidence, the accident did not arise “in the course of the employment,” and that the evidence does not support the findings of facts of the Commission or justify its conclusions of law.
This court is now firmly committed to the doctrine that it will examine into the evidence only to ascertain whether there is any substantial evidence in support of
The question to be determined is: Are counsel’s contentions tenable? In considering that question, it must not be overlooked that our statute materially differs from most of the statutes in force upon the subject of employers’ liability in the several states of the Union. In most of the states the statutes cover accidents “arising out of and in the course of the employment,” while our statute (chapter 63, Laws Utah 1919, § 3113) covers all accidents “arising out of or in the course of the employment.” (Italics ours.) In order to obtain compensation under our statute, it is only necessary to show that the accident occurred “in the course of the employment,” and not that it arose “out of the employment.” It is important to keep the distinction in mind when the compensation cases from the various jurisdictions are considered. The Attorney General, who represents the Commission in this proceeding, earnestly contends that the award of the Com
In Gurski v. Susquehanna Coal Co., supra, the injured miner was working in a coal mine. Gas in dangerous quantities appeared in that part of the mine where he was working, and he was directed to leave there and work at another place a considerable distance away. That portion of the mine where the gas appeared was “closed' off” by posting notices that that portion of the mine was dangerous and by warning the workmen of the danger. One of the miners, working under contract and who had before mined coal in the “fenced-off” portion of the mine, had left his “mining machine,” which he wanted, in the fenced-off portion of the mine. He was again notified on the morning of the accident not to enter that part of the mine, but he did not heed the warning, and, notwithstanding the notice and warning of danger, he, with his “helper,” went to get the machine in the fenced-off portion of the mine, where, while in the act of
The only other case we shall attempt to review is the case of Thomas v. Proctor & Gamble Co., supra. In that case a young girl, about 17 years of age, was injured while she, with two other girls during the lunch hour, was riding around the room on a small truck which was used by the company in hauling articles from place to place in the factory. The truck was in a room where the girls ate their lunches, and after they had eaten, and with the knowledge and consent of the assistant foreman, they would ride around the room on the truck for amusement. The injured girl, on the date of the accident, just as the whistle had called the -workmen to commence work, in some way fell off the truck and was injured. She made application for compensation, and it was contended that the accident did not ‘ ‘ arise out of and in the
About all of the other cases to which we have referred, and in which the accident was the result of some practical joke, prank, or horseplay, are distinguishable from the case at bar in that in those cases the injured employé did not voluntarily join in the horseplay, and at the time he was injured was discharging his usual duties in the course of his employment. Upon the other hand, there are a number of cases which are cited by plaintiff’s counsel in which compensation was disallowed because the accident there in question resulted from practical joking, horseplay, or pranks, or because the injured employé had disregarded the positive orders of the employer. The following cases are illustrative of that class of cases: Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931; Rockford’s Case, 234 Mass. 93, 124 N. E. 891; Moyer v. Packard Motor Co., 205 Mich. 503, 171 N. W. 403; Pacific Coast Casualty Co. v. Pillsbury, 31 Cal. App. 701, 162 Pac. 1040; In re Loper, 64 Ind. App. 571, 116 N. E. 324. In the last ease cited, the Appellate Court of Indiana, in the course of the opinion, states the rule thus:
“The books contain many cases involving injuries to workmen caused or occasioned by some sportive act of a fellow workman done by him independent of or disconnected from the performance of any duty of his employment, and characterized by the courts and law-writers as ‘practical joking,’ ‘skylarking,’ or ‘horseplay.’ With practical uniformity, the courts hold both under the English act and also under the various American statutes that an injury so suffered does not arise out of the employment within the mean*600 ing of the governing statute, and consequently that its compensatory provisions are ■ not thereby invoked.”
In support of the statement contained in the quotation the court cited the following eases: Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215; Coronado, etc., Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Pierce v. Boyer, etc., Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970; and De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761. We have carefully examined every one of the foregoing cases, and while it is true that in those eases the accidents were caused as a result of skylarking, horseplay, or pranks, yet it is also true that compehsation was denied upon the ground, however, that the accidents did not arise “out of the employment” or for the reason that the accidents were caused by the “willful misconduct” of the employe in question, and not because they did not arise “in the course of the employment.” Indeed, in almost every one of the eases it is conceded in the course of the opinions that the accident there in question may have arisen in the course of the employment, yet that it did not arise out of the employment, and the decisions are based upon the latter ground.
What has just been said also applies to the cases first cited in support of plaintiff’s contention. Moreover, in all of those cases the courts specially refer to the statute which limits recovery to accidents “arising out of the employment.” The courts, in deciding those cases, however, did not hold that an employé, or, in case of his death, his dependents, may not recover compensation merely because the accident was the result of some practical joke, prank or horseplay. What the courts hold is that, in case the joke, prank, or horseplay was such that it could not be said that the accident arose out of the employment, then no recovery could be had under the statute. Our statute, as we have pointed out, is, however, broader than were the statutes under consideration in those cases, in that all accidents which arise “in the course of the
As hereinbefore stated, the case at bar differs from nearly all of'the so-called horseplay or practical joke cases, in this, that in most of those eases the victim of the joke or horseplay either did not participate in the joke or horseplay at all, or, if he did, it was because he was forced to do so, while in this ease the deceased was the instigator and the principal, if not the sole actor, in the horseplay; that is, it is clearly inferable from the evidence that, if the deceased had not shut off the power from the elevator when Mitchell was coming up to the second floor with it, the accident would not have happened. Again, if he had not leaned over or “climbed” on to the gate and had not shifted the switch so as to put the power on the elevator, he would not have been hurt. In view of the foregoing, it is not entirely clear to the mind of the writer why it may not be contended with some force that the acts of the deceased were not taken in the course of his employment. Even though it be conceded that he was doing no wrong in going to the second floor, yet it does not follow from that that what he did was in the course of his employment. An act need not necessarily be wrongful to carry it beyond the course of the employment. So far as the evidence disclosed, there was no reason why the deceased should have left the first floor and gone to the second one at the time of the accident. It seems also reasonable to assume that in doing that he was not engaged in any matter or thing which in any way redounded to the good of the service in which he was engaged. Nor was it directly connected with that service.
It is, however, contended that the deceased violated the orders of the canning company in using the elevator, and that he used it for an illegitimate purpose, and that for that reason the applicant may not recover compensation. It is true that in Pacific Coast Casualty Co. v. Pillsbury, supra, the compensation was denied because the accident there in question was caused by the “willful misconduct” of the boy that was killed. The boy there in question was sent upon an errand, and, after returning, he, in violation o'f the express instruction of the employer, used an elevator to go to the upper story in the building and was killed. Here again it becomes important to have recourse to the terms of the statute. Our statute only excluded those injuries which are “purposely self-inflicted.” As we read the statute, therefore, it is not enough that the employé merely disregards some rule, regulation, or order of the master, since such conduct may constitute nothing more than ordinary negligence on the part of the employé, and mere negligence does not destroy the right to compensation. Nor does the fact that the employé may have violated some rule or order necessarily prevent him from obtaining compensation in case of accidental injury. That doctrine is illustrated and applied in a number of the eases hereinbefore cited. But we are here not dealing with an adult, with a man of mature years and experience, but with a mere boy without experience and with an abundance of life and vigor. Here we meet a situation Avhere the injured lad had outgrown his childish fears, but had not yet reached the age when, by reason of his experience and judgment, he would exercise a very great degree of care
It is true that in some of its aspects this may be a borderline ease, and if the deceased had been a man of mature years and experience we might have reached a different conclusion. It is, however, also true that in view of all the circumstances and for the reasons stated, and in accordance with the great weight of authority, the Commission was justified in awarding compensation to the mother of the deceased, and therefore the award should be, and it accordingly is, affirmed; costs to be taxed against plaintiffs.