# King v. State Industrial Accident Commission

> Oregon Supreme Court · November 20, 1957 · 211 Or. 40

URL: https://www.frixlaw.com/law-library/cases/9532535

## Case

- **Full name:** King v. State Industrial Accident Commission
- **Court:** Oregon Supreme Court
- **Decided:** November 20, 1957
- **Citations:** 211 Or. 40; 318 P.2d 272; 309 P.2d 159; 1957 Ore. LEXIS 194
- **Precedential status:** Published
- **Opinion:** On rehearing by Rossman
- **Judges:** Perry, Rossman, Brand, McAllister, Lusk, Warner, Kester
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9532535

## Opinion text

On Rehearing
ROSSMAN, J.
The petition for a rehearing filed by the appellant, State Industrial Accident Commission, contends:
“The Court erred in finding that the decedent met his death by injury arising out of and in the course of his employment while enroute to work.
“The Court decision recites:
‘Without again analyzing the testimony, we express our belief that it warranted a finding that the construction of the log boom was performed by King as an employee and that at the *73 time of Ms death he was on his way to resume work upon that object.’
The decedent workman was not at work. He was ‘on his way to work.’ He was in his own conveyance. He was not being paid either for use of the conveyance or his time in going to and from work. He was not on the employer’s premises.
“The Commission had allowed the claims of the other three on the theory that they were in Bung’s boat, King was the employer and the transportation was part of the contract of employment with King.
“When viewed in the light that King and the other three were employes of Huber & Fisher there were none of the travel time tests such as employer’s conveyance, employer’s premises, pay for travel time or pay for transportation.”
The petition challenges our opinion in no other detail. No brief accompanied it.
Unless we misinterpret the petition for a rehearing, it is based upon a fear that, in sustaining the award of compensation decreed by the circuit court, we acted upon a belief that a workman, who sustains an injury while on his way to Ms employer’s premises but before he arrives there, is entitled to an award of compensation even though he can point to no special circumstances affecting his situation. We acted under no belief of that ldnd. TMs court has more than once recognized that under our Workmen’s Compensation Act only those are entitled to compensation who are the victims of an accident which arose out of and in the course of their employment. One who can say nothing more for himself than that he was on his way to Ms employer’s premises when injury befell him does not bring himself within the terms of the act. Hopkins v. State Industrial Commission, 160 Or 95 , 83 P2d 487 , and March v. State Industrial Commission, 142 *74 Or 246 , 20 P2d 227 . In onr previous opinion we pointed out that Bang’s death occurred while he and his three fellow workmen were crossing Alsea Bay in a boat which Sling owned and which
“would have been necessary to their work of stringing the log sticks * * *. The trip across the bay, two miles in length, was the only means by which the group could have reached the boom which they were constructing.”
It was under those and some ancillary circumstances that we reached the conclusion and employed the words which the petition for a rehearing criticizes. We will now reconsider the question as to whether or not those circumstances warranted the award which the circuit court decreed.
Unless resort is had again to the record, the words which we quoted from the petition for a rehearing may mislead. One of the utterances is this: “He was in his own conveyance. He was not being paid either for use of the conveyance or his time in going to and from work.” The following statement contained in our previous opinion is not challenged by the petition for a rehearing: “The boat which King possessed would have been necessary to their work of stringing the log sticks.” All four men were in the boat when fate struck. It is true that Bang owned the boat in which he and his three fellow workmen-were crossing the bay, but the boat was essential to the work which they proposed to do. All four would have used the boat. Its relation to the work that the men were doing was similar to that of the pile driver. It was an implement or device which was essential to the prosecution of the work. The statement, “He was not being paid either for use of the conveyance or his time in going to and from work” is not supported by the record. According *75 to Schneider, Workmens Compensation Text, Perm Ed, §1751:
“And it has been held that a contract to furnish an employee with necessary transportation ‘may be implied from the acts of the employer who tacitly permits his employees to ride to and from work on a conveyance used for some purpose in connection with the business in which he is engaged’.”
Before going on to the issue to which we will devote most of our attention, we will take note of some evidence concerning the boat. The decedent [King] owned the boat in which the men were crossing the bay when death struck. But his employers, Huber & Fisher, had a small tugboat which the men could have used had they so wished. The tugboat was available to them the morning of the fatality. L. C. Huber, of the firm just mentioned, in referring to the boat and the four workmen, testified:
“Q Did you have your tug tied up to the dock that the Kings used?
“A No. The tugboat was tied up river. It was docked at—
“Q Well, it wasn’t at the same location?
“A No, not the same location. However, they did have access to it.
“Q Would King and his men have been free to have used the tug on the date of the accident?
“A Oh, yes.
“Q They could have used it?
“A Yesf
“Q It would have been much safer transportation?
“A Oh, yes. The accident wouldn’t have happened. However, they were conscientious fellows. We gave them free use of the tugboat any time they wanted it for that matter. But he was a little bit concerned about doing damage to it or one thing or *76 another. It was expensive and they decided to use their own boat.”
An individual, by the name of Victor Quist, whose vocation was fishing and salvaging logs, was frequently at the dock when King and the other three men left to cross the bay. According to him, the men sometimes used King’s boat and “They used many times Huber’s tug.” By “Huber’s” he meant the boat belonging to Huber & Fisher. The following is also taken from his testimony:
“Q But you did know that they rode across on that tug?
“A Yes.
_ “Q You stated that you saw the Kings, as you knew them — the group, the four — on occasions would ride on the tug over to the scene of this operation?
“A Yes.”
No one questions any of the above testimony. Quist also swore that he was familiar with the manner in which boom sticks are fashioned into log booms. After describing the size of boom sticks and the manner in which the end of one is fastened to the end of another by chains so as to make a continuous string, he pointed out that in the construction of a log boom a boat is necessary; for example:
“Q Do you know whether or not in placing them a boat is used?
“A Yes, a boat is used.
“Q Can’t be done on foot by standing in the water?
“A No.”
*77 The record contains no testimony to the contrary. The water at high tide in the area where the men worked was twenty feet deep.
Two of those who testified went to the site of the incomplete log boom the day after the disaster and, in response to questions, described what they found there: logs, pile driver, boom sticks, the unfinished log boom, etc. They mentioned no boat.
In view of the fact that two boats were available to the men and they chose King’s, the smaller, it seems permissible to infer that they must have believed that for the work to be done that day the smaller would be the more useful. The boat, as we have seen, served a dual purpose. Since one was essential to the work underway, it appears reasonable to believe that the men were under an implied duty to take King’s boat, if they rejected the employers’. It would have been impossible for the men to reach the place of their employment that morning without a boat and, likewise, it would have been impossible for them to have performed their work without one.
We come now to the issue as to whether or not the deceased, King, came to his death “by accident arising out of and in the course of his employment.” The quoted words were taken from ORS 656.152.
Larson’s Workmen’s Compensation Law, § 18.24, speaks of “carrying employment impedimenta to and from work.” The treatise gives attention to Gelbart v. New Jersey Egg Producers Assn., 17 NJ Misc. R 185, 7 A2d 636 , in which the deceased workman, for whose death compensation was sought, was entrusted by his employer with the keys to the plant and was required each morning to open the doors. Upon the morning of the fatality he was on his way to the plant, with the keys in his pocket, when a motor vehicle collision took *78 his life. Compensation was ordered by a decision, which said:
“It is a reasonable inference and I find as facts: That the custody of the keys by the decedent in the instant case was an act obviously beneficial to the employer; that the accident occurred while he was traversing the direct route from his home to respondent’s place of business * * *; and that in the procuring of the keys entrusted to his care and custody, he was performing an act incidental to his employment and for the benefit of his employer; that the accident occurred at a time when he was performing duties within the course of his employment; and that the accident arose out of and in the course of such employment and within the construction of the statute of this state as annunciated by the decisions of this and the other Courts of this State; * *
In Davis v Bjorenson, 229 Ia 7, 293 NW 829 , the item of “impedimenta” was an automobile which the workman [claimant] owned and which was used as a service car in his employer’s business. The employer sold and serviced farming implements. The claimant was the serviceman. He was injured while driving from his home to his employer’s shop, and his claim for compensation precipitated the case under review. According to the decision, the claimant’s duties consisted of inside shop and outside service calls. The latter required transportation. In making the calls, he used his ear. His employer supplied the oil and gasoline. We quote from the decision:
“* * * These calls were made from the shop in the daytime and from claimant’s home at other times upon call by the employer to claimant at his home. Under the employment agreement claimant regularly furnished his automobile to the employer for use in the business as a service car. At night *79 the car was kept at claimant’s home where he was subject to emergency service calls requiring its use. During regular working hours the car was kept at the employer’s place of business, for use in the business, not only by claimant, but also by the employer and by other employees. Thus the car was an instrumentality of the business at all hours of the day and was subject to that use at night. It happened that claimant received no orders to make emergency service calls during the night before he was injured. Consequently it was his duty and this duty was regular and definite, to take the automobile to the employer’s shop for its use in the business, by others as well as claimant. In so doing he was performing for his employer a substantial service required by his employment at the place and in the manner so required. In the language of the able trial court, ‘Claimant had no selection of his mode of travel to work, that he was required under the terms of his contract to drive his own ear from his home to the shop where it was available to his employer for use in the employer’s business.’ ”
The court held that the claimant was in the course of his employment when so engaged, and that his injury arose out of his employment.
In Jones v. Texas Indemnity Insurance Co. (Tex Civ App), 223 SW2d 286 , the injured workman who sought compensation was a serviceman in the employ of the local store of Montgomery Ward & Company. He supplied his own automobile and repaired household equipment such as radios, refrigerators and washing machines. Like all other employees, he daily worked in his employer’s store. He was also subject to call at other times. He was paid a salary of $48 per week, together with an allowance of five cents per mile for the use of his automobile. He was injured while driving to his employer’s store to begin his day’s *80 work, and thereupon sought compensation. In holding in his favor, the court said:
“In the case we have here the employee Jones was at the time of his injury engaged in the performance of the duty of his employment. He was doing what his contract' of employment either expressly authorized him to do or required him to do. He was driving the automobile from a place he had taken same in the authorized prosecution of his employer’s business to be further used in the prosecution of that business at another place. * * * 4J. W W
“In our opinion the evidence clearly raised the issue that the duties of the employment of Jones required him to drive on the public roads; that when he was injured he was returning the automobile in question to his employer’s place of business; that he was transporting his employer’s equipment and tools under its express and implied direction, for use in its business.”
The court held that the injury arose out of and in the course of the employment.
In Driscoll Construction Co. v. Industrial Commission of Colorado, 94 Colo 568, 31 P2d 491 , the impedimenta were two horses which the injured workman owned and which he was taldng to the place where he was employed in road construction. Had he reached the place,' he would have hitched the team to one of his employer’s drag scrapers and would then have proceeded with his work. The employer made no provision for stabling the horses and, therefore, this workman, whose name was Erker, like some of the others stabled his team a half mile distant. On the morning of the accident, Erker harnessed his team to a wagon and started driving to the construction work. On the way the wagon overturned and he was injured. The assign *81 ment of error presented the contention that the accident did not arise ont of and in the course of the employment. It was argued that, since Erker had not yet hitched his team to the scraper, the injury occurred while he was “enroute to his work” but had not yet entered the field of actual operation. In rejecting the contention and sustaining the award of compensation, the court pointed out:
“* * * But it was necessary for Erker to bring his own horses. Traveling by wagon as he did was a natural, and as the evidence shows the customary, way of getting the team upon the ground, as the terms of his employment required him to do.”
In Barhman v. Meyer, 12 NJ Misc. 287, 171 A 536, the impedimenta were two dairy pails which the workman was carrying back to the farm when an automobile ran him down upon the public road and took his life. The workman was a dairyman on his employer’s farm. His work began at half past four in the morning and at seven o’clock, after milking the cows and doing farm work, he went for breakfast to his home, a half mile beyond the employer’s property. Each morning he took home with him, as part of his employment, some dairy pails to be washed and cleaned at his home. He returned the pails to the farm after he had eaten his breakfast. The washing and cleaning of the milk pails at home, whether done by the workman or his wife, was an essential part of the duty which he performed for his employer. In sustaining the workman’s right to compensation, the court said:
“* * * and since he was thus obliged to carry these pails to his home, the deceased was necessarily engaged in the service of his employer in both going home and coming back, * * *.
* * *
*82 “Under the Workmen’s Compensation Act * * # a workingman is not required to be physically engaged in actual labor for his employer in order to come within the provisions of the act, * * *; the courts have held it to be sufficient if, as in this case, he was in the service of his employer; * *
The bitterly contested case of O. P. Skaggs Co. v. Nixon, 101 Colo 203, 72 P2d 1102 , is enlightening. Nixon was an attorney whose office was located in Greeley. The Skaggs Company maintained its office in Denver. Nixon was employed by the Skaggs Company to render legal services and also to perform some others of an executive nature, for both of which he was paid $50 per month. Under the terms of his employment, he was required to go to Denver when requested without additional compensation or expense to the Skaggs Company. On the occasion which preceded the case under review, Nixon had been called to the office of O. P. Skaggs, president of the company, in Denver, and was given some papers upon which he was requested to prepare an opinion. While returning to Greeley, with the papers in his possession, the automobile accident occurred which resulted in Nixon’s claim for compensation. In sustaining the claim, the court said:
“While it was not specified that he should go by automobile, under modern conditions his doing so was the adoption of a reasonable mode of transportation.”
The court held:
“We are of the opinion that the accident arose out of and in the course of claimant’s employment.”
We shall review cases of the foregoing kind no further, except to mention Driessen v. Schiefelbein, 67 SD 645 , 297 NW 685 , which is readily distinguishable *83 from the one at bar, but we notice that the court in deciding it stated:
“In the case of Stratton v. Interstate Fruit Company, 47 S. D. 452, 199 N. W. 117 , the injury occurred while a truck driver was returning to his work from dinner, but the facts in that case established that this driver was actually performing a duty owed the employer, in that, at the time of the accident he had on Ms truck certain property which it was Ms duty to collect and return to his place of employment.”
As we have seen, the unchallenged evidence shows that a boat was essential to the work of constructing the log boom. It is true that the record does not expressly indicate that the employers had not provided for the men a boat on the other side of the bay. But, after the plaintiff had presented the evidence above reviewed showing that (a) the men needed a boat to perform the work which they planned that day; (b) two boats were available to them, King’s and the employers’; and (c) witnesses who had crossed the bay the day after the fatality and who, in response to questions as to what they saw there, had mentioned no boat, the defendant [accident commission] made no effort to show that a boat, other than the two which we have mentioned was available to the men. We think that the only reasonable conclusion which can be drawn from the situation is that the boat in which the men proposed to cross the bay was the one which they proposed to use in working upon the log boom. In other words, they were bringing with them to the scene of their labors eqmpment [the boat] essential to the work wMch they were hired to perform. This, therefore, is a case in wMch the means of transportation was also an essential tool or instrument of the toil. We have taken note of the fact that the men could not reach the site *84 of their work without the boat and that they could not perform their work without the boat.
Larson, in his mention of cases in which the workman was “carrying impedimenta to and from work,” says:
“The mere fact that claimant is, while going to work, also carrying with him some of the paraphernalia of his employment does not, in itself, convert the trip into a part of the employment.”
We think that that observation is warranted, and will now trace its application through some of the cases which we have reviewed.
In the Gelbart case, the fact that the workman had in his possession the keys to the plant when death struck did not alone induce the court to hold that the accident arose out of and in the course of the employment. In reporting the facts of the ease, the court stated that Gelbart was subject to call at all hours, although it did not mention that fact in the part of the opinion which reflects its reasoning. As we have seen, the court pointed out, “The custody of the keys by the decedent in the instant ease was an act obviously beneficial to the employer.” In that case, the employer was under no duty, express or implied, to furnish Gelbart with transportation.
Nixon, in the O. P. Skaggs Company case, likewise, was subject to call at all hours and, like Gelbart, was not entitled to transportation as an incident of his employment. However, his transportation of the valuable papers belonging to his employer was beneficial to the latter and was made in the performance of his duties. The workman, in Davis v. Bjorenson, was also subject to call at all hours. His driving the car to his employer’s shop was deemed by the court beneficial to the *85 employer. In the Driscoll Constrnction Company case, the workman, like Bang, worked fixed hours and was not subject to call. Transportation for him in the manner in which he was gaining it was deemed by the court the natural and contemplated means. His act in bringing the team to the site of the road construction work was, of course, beneficial to the employer.
The reason we mentioned the call feature of the above cases is because it may be easier to infer that an accident arose in the course of employment if the workman was on duty all hours around the clock, but it will be noticed that the call feature alone did not suffice in any of the above cases to establish that the injury arose in the course of the work. In each instance, the court found that the workman was doing something at the time of his injury which was beneficial to the employer. But, even if a workman, who met with an accident before the morning whistle blew, was not subject to call it may, nevertheless, be that the injury was incurred in the course of his employment if he was doing something at that time for his employer which his duties, expressly or impliedly, required him to do. Accordingly, the fact that the workman carried with him impedimenta of his employment when he drove to his place of employment may tend to show that the trip was made, in part at least, for his employer’s benefit and pursuant to duty. We pause to note that the mere fact that a workman carried with him impedimenta while proceeding to his place of employment when an accident befell him does not alone show that the accident occurred in the course of the employment, for if the workman was, for example, a carpenter who was carrying with him his Mt of tools, obviously, the conclusion would be that he was carrying them for his own benefit and not as a duty to his *86 employer. It is necessary, therefore, to show that the impedimenta were carried, in part at least, for the employer’s benefit and as the result of an express, or implied, duty to the employer.
We believe that the record warrants a belief, as we have stated before, that the employers were under an implied obligation to furnish a means whereby the men could cross the bay. In short, they rendered the tugboat available to the men as an incident of the contract of employment. The excerpt which is quoted in a preceding paragraph from Schneider, Workmens Compensation Text, Perm Ed, § 1751, justifies the belief just expressed. See, also, Rubeo v. McMullen Co., 117 NJL 574, 189 A 662, 118 NJL 530, 193 A 797. If we pause for a moment and contrast the employers’ lack of interest in the means whereby the men went from their homes to the boat landing with the fact that the employers provided a boat whereby the men could go from the boat landing to the log boom site, we have additional reason for the conclusion just stated. The employers provided no automobile in which the men could ride from their homes to the boat landing. We also believe that the employers’ interests were served as the men were bringing to the incomplete log boom a piece of equipment [the boat] which was essential in the construction of the boom. Had they not brought King’s boat they would have fetched the employers’. It is true that the men were in the boat and that it afforded them transportation, but in that respect the case is like Davis v. Bjorenson, supra, Jones v. Texas Indemnity Insurance Co., supra, and Driscoll Construction Co. v. Industrial Commission of Colorado, supra. We conclude that the act of Kang in bringing the boat across the bay served the interests of the employers and was of direct benefit to them. In other words, when *87 the accident occurred, King and his co-workers were performing a service for the employers which constituted a part of their duty. Thus, while they were taking the boat to the scene of their work they were engaged in the course of their duties.
Without carrying the analysis further, we express our conclusion that King’s death resulted from an accident which arose out of and in the course of his employment.
In citing and reviewing the authorities to which we have resorted, we do not imply that if the facts in any one of them find a counterpart in a case that may in the future come before us, we would decide it the same way. We do not deem ourselves bound by fact holdings in decisions to which we resort by way of analogy or analysis. See 21 CJS, Courts, p 313, § 190.
We adhere to our previous opinion.
Perry, C.J., Lusk and Brand, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532535. Public record. Not legal advice.