D'Amico v. Conguista

Jeffers, J.

(dissenting) — I am unable to agree with the conclusion reached in the majority opinion that D’Amico was not in the course of his employment at the time he was injured, and for that reason I dissent.

I accept the facts as set forth in the majority opinion and also the questions presented and the applicable statutes.

I also agree that this court has had before it but one case, namely,

Young v. Department of Labor & Industries,

200 Wash. 138 , 93 P. (2d) 337 , 123 A. L. R. 1171, where a workman was injured during the noon rest period, and wherein the rules applicable to such cases were stated. I am, however, unable to agree that the facts in the

Young

case are so similar to the facts in the instant case as to make the decision in the

Young

case controlling here.

It seems to me that the majority opinion entirely eliminates from our consideration of whether or not a workman is in the course of his employment during the rest period, the basic reasons stated in the general rule and in the cases holding that under certain conditions a workman is in the course of his employment during the noon rest period, when it states:

“Under our workmen’s compensation act definite conditions must exist at the time of an injury in order to entitle one to the benefits of the act. First, the relationship of employer and employee must exist between the injured person and his employer (except in some cases where the injured

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person is an independent contractor); second, the injured person must be in the course of his employment; third, that the employee must be in the actual performance of the duties required by the contract of employment; and, fourth, the work being done must be such as to require payment of industrial insurance premiums or assessments.”

After discussing the

Young

case,

supra,

the majority opinion states: “Other decisions of this court supporting this conclusion are: . . . ” Then follows a list of cases beginning with

Hoffman v. Hansen,

118 Wash. 73 , 203 Pac. 53 , and ending with

Waddams v. Wright,

21 Wn. (2d) 603, 152 P. (2d) 611 .

All of the above cases, with the exception of the

Waddams

case, were decided prior to the

Young

case, and none of them involved the question here presented; in other words, they were not noon hour cases.

I think it will appear from the discussion to follow that not only in the

Young

case did this court recognize the general rule applicable to noon hour cases, but in other cases this court has stated that it is not essential to the right to receive compensation

that the employee should have been working at the particular time when the injury was received,

also stating that the employment is not limited to the

exact moment when he begins work or when he quits work.

To illustrate what I have said and will say relative to the

Young

case, I desire to set out some statements made in the cited case not quoted in the majority opinion:

“The peculiarity of the case before us is that the accident happened during the

noon hour,

while appellant,

though not at work, nor under the supervision of his employer, nor receiving pay for that period,

was, nevertheless, on his employer’s premises, and was engaged at the time of his injury in a personal exploration of a locality which he had not been forbidden to enter.

“We have no cases from this jurisdiction presenting that exact situation, but there are several which bear a more or less close analogy.” (Italics mine.)

The opinion then cites and discusses the following cases:

Hama Hama Logging Co. v. Department of Labor & Indus

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tries,

157 Wash. 96 , 288 Pac. 655 ;

Carroll v. Western Union Tel. Co.,

170 Wash. 600 , 17 P. (2d) 49 ; and

Hill v. Department of Labor & Industries,

173 Wash. 575 , 24 P. (2d) 95 . The opinion has this to say in regard to the opinion in the

Hill

case:

“The opinion, however, recognized the distinction between that case and those cases wherein persons within the protection of the act temporarily left the places of their employment for the purpose of performing some act of

necessity

or

convenience,

such as procuring

water or food.”

(Italics mine.)

The opinion in the

Young

case continues:

“Consulting the cases from other jurisdictions, we find many instances in which employees have been injured during meal hours

when they were not actually at work.

The

general rule

in such cases is that the injury is compensable if the employee was, at the time,

doing something incidental to the duties for which he was engaged,

but is not compensa-ble if the injury resulted

from an independent act of the employee having no connection with his work or his meal.”

(Italics mine.)

The opinion then quotes the following statement from 71 C. J. 739, § 456:

“ ‘In accordance with the general rule that injuries to an employee while he is doing something not strictly within his obligatory duty but which is

incidental

thereto may be compensable, harm which befalls an employee may be com-pensable when it occurs to him during the

lunch period

or other meal period. However, harm sustained during a meal period may not be compensable as arising out of and in the course of employment

when the harm results from an independent act of the employee having no connection with his work or his meal,

or from the independent act of a third person, or when the harm is sustained by reason of the employee’s placing himself in a more dangerous position than was required of him during the meal period, or where sufficient evidence that harm sustained during the meal period was an accident arising out of and in the course of the employment is lacking.’ ” (Italics mine.)

The opinion continues:

“The theory of the cases is that a

period of rest, refresh-

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merit,

or other

temporary cessation from work, is not of itself sufficient to break the continuity of employment,

but that

the independent act of the employee, which has no relation to the employer’s interest,

serves to break the so-called nexus and to put the employee without the course of his employment.

“In this case, it is manifest that appellant’s venture had no connection whatever with his meal. He was not seeking a place where he might eat,

nor was he returning to work from a place where he had eaten.

He had finished his lunch without any mishap

and had entered upon a wholly separate and distinct undertaking.

When he began his exploration of the interior of the dam, he was not under the supervision or control of his employer, but was on his own time. He was not then engaged in the performance of any of his obligatory duties or anything

incident

to them. He was not performing a task in furtherance of his employer’s work or interest, but

was engaged in a voluntary exploration of his own conception.”

(Italics mine.)

I desire to again call attention to

Hill v. Department of Labor & Industries, supra,

referred to in the

Young

case, and particularly to the following statement and quotation found in the

Hill

case:

“Respondent invokes the doctrine enunciated by the supreme court of Illinois in the case of

Rainford v. Chicago City Ry. Co.,

289 Ill. 427 , 124 N. E. 643 , to the effect that:

“ ‘That which is

reasonably necessary

to the

health

and

comfort

of the employee, although personal to him, is

incidental

to the employment and service.’

“With this doctrine we are in accord,

but it does not apply to a matter such as the mailing of a letter, which is wholly foreign to the employment upon which the person injured is engaged, and

necessary neither to his health nor physical comfort.”

(Italics mine.)

While under the facts in that case, this court held that Hill was not in the course of his employment at the time he was injured, we cited with approval the rule announced in the

Rainford

case.

In the instant case, respondent, apparently recognizing the general rule as applied to noon hour cases and as stated in the

Young

case,

supra,

contends that the facts in this case bring it within what may be termed an exception to the

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general rule, that is, that at the time he was injured, D’Amico was on

an independent venture of his own,

in no way connected with his work or meal.

I am of the opinion that the facts in the

Young

case are so different from the undisputed facts in the instant case that the decision in the

Young

case is not controlling here. However, I am of the opinion that the general rule, as stated in the

Young

case and other noon hour cases, is such as to almost compel a holding that, under the facts in the instant case, it must be held as a matter of law that D’Amico, at the time he was injured, was in the course of his employment.

In the instant case, it is apparent that the employees on this job, having only thirty minutes for the noon rest period, could not go very far from their work to eat their lunches, and it must have been contemplated by both the employer and the employees that the workmen would eat their lunches at some place near their work. It is true, of course, that in this case the employees could not and did not eat their lunches on the premises of their employer, but, in my opinion, that is not such a necessary element as to prohibit a holding that D’Amico was in the course of his employment.

In the instant case, all of the employees ate their lunches within a few feet of their place of work, at places which in my opinion were no more subject to danger than was their place of work.

It does not appear that D’Amico, after he had finished his lunch, went on any

independent venture of his own,

but he merely walked over to the curb to a place some ten or fifteen feet from his place of work, where again he was in no more dangerous position than he was while working or at any time during the rest period, and was apparently waiting for the time when he was required to go back to work. The place to which he had gone and where he was standing was not out of the course which might reasonably have been taken by him in returning to his work from the place where he had been eating his lunch.

I appreciate that an injury may be received by a workman, whether on or off the employer’s premises, as the result of the act of some third person, which injury, under the

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particular facts, may be found not to be an industrial injury. Such a situation, in my opinion, is illustrated by the case of

Blankenship v. Department of Labor & Industries,

180 Wash. 108 , 39 P. (2d) 981 , cited in the majority opinion; but that case is, in my opinion, easily distinguished from the instant case, in that Blankenship left his place of employment to talk with one Perkins, a third party having nothing to do with Blankenship’s employment, and, after some conversation between these men, Blankenship started back to work and was shot and killed by Perkins. It is evident that Blankenship’s death in no way resulted from a hazard of his employment, but that his injury and death resulted from something which could not have been anticipated by the employment.

The same general distinction may be made in regard to the cases cited by respondent (not referred to in the majority opinion) under her contention that the injury, in the instant case, was caused by a risk common to the public. It may be admitted that the cases cited by respondent, among which are

Southern Surety Co. v. Galloway,

89 Okla. 45 , 213 Pac. 850 , and

De Porte v. State Furniture Co.,

129 Neb. 282 , 261 N. W. 419 , held that, under the facts in those cases, the claimants had gone on to the sidewalk or street from their places of employment and by so doing had made themselves a part of the general public, and were therefore no more entitled to protection under the act than any other member of the public.

The difference in the factual situations presented by the cases cited by respondent and those in the instant case is that, in the instant case, the place of D’Amico’s employment was subject to all the hazards of the highway, and such hazards must have been contemplated in the contract of employment. D’Amico, during the noon rest period, did not go any place or do anything which increased the hazards surrounding his place of work.

While, as hereinbefore stated, the

Young

case is the only noon hour case decided by this court, we have, in line with the decisions from other jurisdictions, passed upon the question- of whether or not a workman was in the course of his

*693

employment at .the time he was injured, and we have held as a

question of law

that such a workman was or was not in the course of his employment, under the facts in the particular case. See

Hobson v. Department of Labor & Industries,

176 Wash. 23 , 27 P. (2d) 1091 ;

Wood v. Chambers Packing Co.,

190 Wash. 411 , 68 P. (2d) 221 ;

Clausen v. Department of Labor & Industries,

15 Wn. (2d) 62, 129 P. (2d) 777 ;

Leary v. Department of Labor & Industries,

18 Wn. (2d) 532, 140 P. (2d) 292 .

In the

Clausen

case,

supra,

we stated:

“As already stated, the joint board held that Clausen did not come within the terms of the statute, and denied the claim of the widow. As the facts in this case are not disputed, and the

question is solely one of law

to determine the relationship which arose, the rule that the department’s decisions are

prima facie correct

has no application.” (Italics mine.)

In the

Leary

case,

supra,

we again stated:

“The only question before this court, then, is whether or not Mr. Leary, in going out and getting his car for the purpose of pushing the Dunn car away from the gate, was, while so doing, in the course of his employment.

The facts in the case being undisputed, the only question is whether or not the law was properly applied to the facts.”

(Italics mine.)

See, also, from other jurisdictions,

Williams v. State Compensation Commissioner,

114 W. Va. 37 , 170 S. E. 775 ;

Krause v. Swartwood,

174 Minn. 147 , 218 N. W. 555 , 57 A. L. R. 611;

Tinqey v. Industrial Accident Commission,

22 Cal. (2d) 636, 140 P. (2d) 410 .

I have cited the cases in the group last above referred to for the reason that respondent, in her brief, makes some contention that the question of whether or not D’Amico was in the course of his employment at the time he was injured, is one for the jury.

At this point, I desire to call attention to some of our own cases. While they are not noon hour cases, I think they throw some light on one of the elements which the majority opinion holds must be present before it can be

*694

held that a workman was in the course of his employment at the time he was injured, namely, that D’Amico, at the time he was injured, was not actually engaged in doing the work he was employed to do.

In

Brown v. Department of Labor & Industries,

135 Wash. 327 , 237 Pac. 733 , it appears that the workman, after he had ceased work at four p. m., was killed on his way home and when about four miles from the place of his employment. In the cited case, while this court denied the claim for compensation made by the widow, we stated:

“We think it can be safely said that ordinarily when an employee is injured while traveling the public road on his way to or from his place of work by conveyances not furnished by the employer, and he is not to be paid for the time consumed in going to and coming from his work, and at the time of his injury

he is not on or in the immediate proximity of his employer’s premises,

the injury does not arise

out of the employment,

under the terms of our statutes. But there are a number of cases holding that the employment is not limited to the

exact moment of arrival at the place of work nor to the moment of departure therefrom.”

(Italics mine.)

It may be doubted that the above phrase “out of the employment” was properly used in the cited case, in view of the fact that the statute then in force, Rem. Comp. Stat., § 7675, like the present statute, did not use the term “out of employment” but “in the course of his employment,” and the courts seem to recognize that the term “in the course of his employment” may be given a more liberal interpretation than the term “arising

out of

and in the course of his employment.”

Bristow v. Department of Labor & Industries,

139 Wash. 247 , 246 Pac. 573 , was a case in which the working hours of the employee were from eight to twelve a. m., and from one to five p. m. On the morning he was killed, Bristow punched the time clock at 7:25 a. m., after which he took a course along the premises of his employer, going through the portion of the plant where his daily work was performed, and then toward a dam belonging to the company, the dam being located about four hundred feet from the building where he

*695

worked. On his way he met two fellow-employees, whom he told he was going fishing. Thereafter he was never seen alive. His body was recovered about seventy-five feet below the dam. The widow filed a claim with the department, which claim was denied and on appeal was taken to the superior court, where, after the trial, the court reversed the action of the department and gave judgment for the widow. The department appealed to this court, contending that Bristow was not in the employment of any employer. In affirming the judgment of the lower court, we stated:

“This question is not without some difficulty. It will not do to lay down a hard and- fast rule

that an employee who arrives at his place of work thirty-five minutes before the time contemplated to commence the actual labor under his employment is not a workman until the whistle sounds; nor can it be said just how long a time the employee may be permitted upon the plant before the whistle blows.

There are many facts and circumstances, which might make the time in one case very unreasonable, while, in another, it would be quite reasonable. . . .

Can it be said, then, as a matter of law, that, having arrived at the plant thirty-five minutes before the usual working time, a time barely sufficient to have repaired a puncture

[if he had had one],

and then gotten to his place of work before the whistle sounded, that his arrival was so premature that he should not be considered an employee?

We think not.” (Italics mine.)

The case of

White v. Shafer Bros. Lbr. & Door Co.,

165 Wash. 298 , 5 P. (2d) 520 , 8 P. (2d) 1119 , was commenced by White to recover from the defendant company for personal injuries claimed to have been received as the result of the negligence of the company. Defendant pleaded that’ the plant was engaged in an extrahazardous industry; that White was then in its employ and was engaged in extra-hazardous employment; that he was injured in the course of such employment; and that therefore he was entitled to relief, if any, only under the workmen’s compensation law. The cause proceeded to trial with a jury. At the conclusion of White’s evidence, the defendant moved for judgment of dismissal upon the ground, among others, that White, at the time in question, was “an employee protected by the work

*696

men’s compensation act.” This motion was granted, and judgment of dismissal entered, from which White appealed. This court stated the question to be considered as follows:

“So, our present problem is, was White injured

in the course of his employment?

If he was so injured,

then he can look for relief only to the accident fund provided by our workmen’s compensation law.”

(Italics mine.)

In the cited case, the court quoted from the case of

Indian Hill Club v. Industrial Ins. Commission,

309 Ill. 271 , 140 N. E. 871 , as follows:

“ ‘It is not essential to the right to receive compensation that the employee

should have been working at the particular time when the injury was received.

The employment is not limited to the

exact moment

when he

begins work or when he quits work.

[Citing authority.]”’ (Italics mine.)

The opinion in the

White

case continues:

“That decision seems to us to be directly in point in our present inquiry. In harmony with that decision, we have held that it is not necessary that an employee in an extra-hazardous employment must necessarily be

actually at work,

when injured, in order to be considered as ‘injured in the course of his employment;’ that is, his injury may be so intimately related to his employment as to call for the holding that he was ‘injured in the course of his employment,’

though not then actually at work or within his actual working hours.

[Citing authority.]” (Italics mine.)

I have cited the cases last above referred to only for the purpose of showing that, prior to the

Young

case and in cases not involving a noon hour rest period, we have held that it was not necessary that the employee be actually at work at the time he was injured, in order to be considered as injured in the course of his employment. I am unable to agree that the statements made in the three cases last cited are mere

obiter dicta.

I may also state here that we held in

Pearson v. Aluminum Co. of America,

23 Wn. (2d) 403, 161 P. (2d) 169 , that the employee was in the course of his employment when injured, notwithstanding that at the time of such injury he was not on the

employer’s premises, was receiving no pay for the

*697

time he was being transported to and from his work, and regardless of the fact that the employer did not report to the department the time consumed in such transportation.

It is true the case last cited is what may be termed a transportation case, but the theory upon which it is held in such cases that the employee is in the course of his employment is that the act of transportation is

an incident of the employment,

because of mutual benefit to both employer and employee in facilitating the progress of the work.

It is likewise the theory of the noon hour cases that, under certain conditions, the noon hour rest period is

incidental to the employment,

and that a period of rest, refreshment, or other temporary cessation of work is not of itself sufficient to break the continuity of employment, but that an independent act of the employee, which has no relation to the employer’s interest, serves to break the so-called nexus and to put the employee without the course of his employment.

Waddams v. Wright,

21 Wn. (2d) 603, 152 P. (2d) 611 , cited in the majority opinion, is not a noon hour case, but is one in which the employee was injured after he had finished his day’s work and was on his way to the bunkhouse for a shower. He was injured while walking along a sidewalk beside the road, as he neared the bunkhouse. It is my opinion that cases of this character are not decisive of or controlling in cases like the instant case.

The general rule as announced in the

Young

case,

supra,

is quite generally recognized, as is what we may term the exception, namely, that the rule is not applicable to a workman injured during the noon hour rest period when such workman at the time is engaged in some independent venture of his own, in no way connected with his employment or his meal.

As stated in

Zurich General Accident & Liability Ins. Co. v. Brunson,

15 F. (2d) 906, each case must rest upon its own peculiar facts. Our statute, which provides only that the injury be received “while in the course of his employment,” is different from the statutes of many of the states, which provide that the injury be one

“arising out of

and in the course of employment.” In other words, our statute does

*698

not require the causal connection between the employment and the injury which would seem to be required under some of the statutes. For a discussion of this question, see 15 Wash. L. Rev. 120 .

The difference in the statutes has undoubtedly affected the decisions. I quote from

Hale v. Savage Fire Brick Co.,

75 Pa. Super. Ct. 454 :

“Our Supreme Court has pointed out in the clearest of language that our Workmen’s Compensation Act differs from that in force in most other states in this country and in England, in that it does not require that the accident resulting in injury must

‘arise out of the employment’

but only that it occur

‘in the course of the employment’

... In most other jurisdictions both elements must be present, viz: the accident must arise (1) out of and (2) in the course of the employment.

“This makes all the difference in the world in considering an injury resulting from accident in circumstances such as are shown in the present case.” (Italics mine.)

Quoting further from the cited case:

“Following the language used with approval in

Dzikow-ska v. Superior Steel Co.,

259 Pa. 578 , this court has already held in

Blouss v. D., L. & W. R. R. Co.,

73 Pa. Superior Ct. 95 , that a workman’s

employment

is not broken by a short interval of time taken for the noon-day meal [in this case thirty minutes], where he remains on the employer’s premises (unless he is doing something that is wholly foreign to his employment), and that in such circumstances he is still engaged in the furtherance of the business or affairs of the employer. ‘Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Acts,

though they are only indirectly conducive

to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities,- as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food or fresh air or to rest in the shade.’ ” (Italics mine.)

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In the cited case, the appellant contended that the rule did not apply to a definite lunch hour, but only to food eaten during a moment of leisure snatched from work. The court held the rule was not generally so construed.

See, also,

In re Sundine,

218 Mass. 1 , 105 N. E. 433 , wherein the statute under consideration provided that the injury must arise “out of and in the course of” the employment. Yet the court held that claimant’s employment was not suspended at the time she was injured while on her way to lunch. The accident in the cited case occurred on stairs not under the control of the employer, the court holding it was a necessary incident of the claimant’s employment to use these stairs.

It then becomes necessary in the case at bar to determine whether, under all the facts, D’Amico, at the time he was injured, was in the course of his employment, under the general rule as announced in the

Young

case,

supra.

D’Amico was engaged in hard work, operating a drill, breaking the pavement. The place where he was working was on the highway, and therefore it seems to me the hazards of the street were incidental to his work, distinguishing this case in that respect from many of the cases cited by respondent, some of which are referred to in the majority opinion. While the workmen were under no duty to eat a lunch or to eat it at any certain place, it was the custom for them to bring their lunches and to eat them near the place where they were working along Airport way. In view of the short work stoppage of thirty minutes, it was practically impossible for them to do otherwise. This practice, then, it seems to me was within the reasonable contemplation of the parties concerned. This was not only for the benefit and interest of the employees, but also for the benefit and interest of the employer, and was incidental to the employment. The work being done by D’Amico necessitated a rest period.

It is my opinion that there is nothing in the record indicating that, at the time of the accident, D’Amico had entered upon a

separate and distinct undertaking of his own,

not connected with his employment, as was found to be the situation in the

Young

case.

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I do not desire to be understood as contending that D’Amico was in the course of his employment merely because of the fact that only five minutes or less remained of the rest period; but it is my opinion that, when all the facts in the case are considered, it becomes the duty of this court to hold as a matter of law that D’Amico, at the time he was injured, was in the course of his employment under the general rule announced in the

Young

case,

supra,

and other authority cited.

I am of the opinion that it is not necessary to such a holding that the injury be received on the premises of the employer, or that the workman be paid for the time consumed in the rest period, or that the employer in making his report to the department of labor and industries, report the time consumed in the rest period. See

Pearson v. Aluminum Co. of America,

23 Wn. (2d) 403, 161 P. (2d) 169 .

For the reasons stated, I am of the opinion that D’Amico was in the course of his employment at the time he was injured and that this action will not lie against appellants, and therefore the judgment entered on the verdict should be reversed and the cause remanded with instructions to the trial court to dismiss the action.

Steinert and Robinson, JJ., concur with Jeffers, J.

May 2, 1946. Petition for rehearing denied.