Honda v. Higa , 1935 Haw. LEXIS 13 ( 1935 )

This is a writ of error to review the judgment of the circuit court of the first circuit denying compensation to an employee under the Workmen's Compensation Act.

The facts are simple and undisputed. The plaintiff in error, a waitress in a restaurant, was instructed by her employer to get some cigarettes from a dealer about a block distant. Having been detained in the performance of her duties until about the closing time of the cigarette dealer she enlisted the assistance of a customer to convey her on the latter's motorcycle to the cigarette dealer's place of business and while in transit the motorcycle skidded and the plaintiff in error was thrown to the ground, sustaining injuries. Plaintiff in error describes the operator of the motorcycle as "a guy from Pearl Harbor," "a sailor" whom she knew by sight only and who had come into her place of employment to drink beer. Part of the duties of the plaintiff in error as waitress was to check the restaurant's stock of merchandise including cigarettes. She had previously upon numerous occasions, averaging about three or four times a week, gone on similar errands to the cigarette dealer's place of business, but always on foot.

Plaintiff in error's claim for compensation is based upon the provisions of section 3604, R.L. 1925, which provides: "If a workman receive personal injury by accident arising out of and in the course of the employment or by disease proximately caused by the employment, or resulting from the nature of the employment, his employer or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified." The industrial accident board granted compensation. Upon appeal to the circuit court by the employer it was stipulated that the cause be submitted upon the same evidence adduced before the industrial accident board. No jury trial was demanded.

The circuit judge who presided upon the trial held in effect that the injuries which the claimant suffered did not arise out of her employment for the reason that there was no causal connection between the course of her employment and the resulting injury, riding upon the rear seat of a motorcycle for the purpose of going a block after cigarettes being a risk not connected with nor reasonably incidental to her work as a waitress in the restaurant of her employer.

This court, in the case of Wong Chee v. Yee Wo Chan,26 Haw. 785, held that for an accident to arise out of employment there must be reasonably apparent a causal connection between the conditions under which the work is required to be performed and the resulting injury, that is, the injury must reasonably appear to have had its origin in a risk connected with or reasonably incidental to the work and to have flowed from that source as a rational consequence thereof. An exception to this general rule arises where a workman for the protection of his employer's interest acts in an emergency. (Spooner v. Detroit SaturdayNight Co., 153 N.W. [Mich.] 657, 660.) But manifestly no emergency was shown to exist in the present case.

It is undisputed that the claimant had been instructed by her employer to go to the cigarette dealer and purchase cigarettes. Hence no one will challenge the conclusion that in going to the cigarette dealer to purchase cigarettes the claimant was acting in the course of her employment. Moreover, had the claimant been authorized or permitted by her employer to avail herself of the use of the customer's motorcycle in going to and returning from the place of business of the cigarette dealer and she was injured en route there would be a causal connection between the conditions under which the errand she was required to perform and the resulting injury and the injury would reasonably appear to have its origin in a risk connected with or reasonably incidental to the errand she was instructed to make and to have flowed from that source as a rational consequence thereof.

In the Wong Chee case there appeared express authority to go upon the errand in the course of which the accident occurred and permission was implied to use an automobile to go upon the errand from the fact that the employee had been provided by his employer with an automobile with which to perform his work.

Side by side with the Wong Chee case we find the decision of the King's Bench in Pierce v. Provident Clothing Supply Co. (1911), 1 K.B. 997, where it was held that a collector and canvasser to an industrial company, whilst riding a bicycle in the course of his employment, was knocked down and killed by a tramcar, and the fact that he used a bicycle for the purposes of employment was known to and not forbidden by the company. Compensation was properly awarded to his dependents. In the latter case Lord Justice Moulton says: "I think that this case is concluded by the finding of the learned county court judge that this was a permitted mode of locomotion. It was known to and not forbidden by his employers; it was permitted although it was not directed. That being so, we can draw no distinction between that and any other permitted mode of locomotion. A man who in the course of his employment has to get about the streets may do so on foot or in a tramcar or in a carriage or motor car or on a bicycle. Each of them has its own risks and each is free from some of the risks which affect the others. We have not to balance these risks one against the other. So soon as it is clear that this mode of locomotion is permitted by the master the workman in adopting it is acting within the scope of his employment." Many additional authorities to the same effect could be cited. But in the present case there is no evidence whatsoever which would support even an inference that the employer of claimant permitted the latter to depart from her usual method of travel between the restaurant and the cigarette store and adopt a means of transit which entailed additional and unusual risk and danger. Indeed, there is no evidence indicating that the employer had any knowledge of the intention or purpose of the injured claimant to adopt this unusual mode of transportation. The circuit judge found, upon the undisputed evidence submitted to him, "that about 7 P.M. the proprietress had told the plaintiff to go get some cigarettes for the restaurant; she had gone on such errands previously but had always walked. It does not appear from the evidence that the proprietress consented to or knew of the proposed method of traveling one block to get a carton of cigarettes." And again the trial court said: "A waitress departs from the scope of her employment when she climbs upon the rear seat of a motorcycle of a drinking customer for the purpose of going a block after cigarettes, particularly when it does not appear that such method of travel has ever been known to or authorized by the employer, nor is an injury to such waitress resulting from the collision while so riding tandem on a motorcycle a risk connected with or reasonably incidental to her work in a restaurant." These findings were clearly supported by the evidence.

If in fact the employer permitted, either expressly or by implication, the use of a motorcycle by the injured claimant, or, prior to the accident, had knowledge that the claimant contemplated the use of the motorcycle to perform the errand the burden was upon the claimant to establish these facts by evidence. "The burden of proof rests upon the applicant to establish all the facts necessary to entitle him to compensation under the Workmen's Compensation Act. Factors necessary to support the claim cannot be left to surmise, conjecture, guess or speculation." Wong Chee v. Yee Wo Chan,supra.

In the case under review there is no evidence of any express agreement between the employer and the claimant as to what means of travel the latter should employ upon errands to the cigarette dealer's place of business when purchasing cigarettes. But the absence of such evidence does not per se admit of the inference that in the performance of her duties the choice of method of travel was left to the reasonable discretion of the claimant. Where the right of recovery by the servant against the master depends in part upon the claim of possession by the former of discretion in the former in the choice of instrumentalities with which to perform the duties of his employment, such discretion similarly as all other facts material to the recovery must be established by the servant by competent and material evidence directly or indirectly tending to prove the possession of such discretion.

More often than otherwise contracts of employment fail to contain or include express provisions in respect to the means of travel to be used by the employee in the performance of the duties of his employment. And when such is the case courts have resorted to the character and incidents of the employment and whatever has been uniformly done in the execution of the contract by both parties to it to ascertain what means of travel the servant in the performance of his duties was permitted, required or expected to use. (Hewitt v. Casualty Co. of America, 113 N.E. [Mass.] 572, 573; Brauch v. Skinner Bros. Mfg. Co., 51 S.W. [2d] 27, 29; Ind. Comm. v. Aetna Life Ins. Co., 174 Pac. [Colo.] 589, 591; Kunze v. Detroit Shade Tree Co., 158 N.W. [Mich.] 851, 852; London Lancashire Indemnity Co. v.I.A. Comm., 170 Pac. [Cal.] 1074.)

In the instant case the character and incidents of the employment and what had been uniformly done in the execution of the contract by both of the parties to it support the finding of the trial court that the use by the claimant of a motorcycle in the performance of the duties of her employment in going upon errands to the cigarette dealer's place of business when purchasing cigarettes was not known or consented to by the employer. The errands were mere incidents to the main occupation of the claimant as a waitress. The distance to be traversed was but a "block." This court takes judicial notice that the length of an ordinary city block in the vicinity of the place of the claimant's employment is in the neighborhood of two hundred to three hundred feet. There is no evidence that the employer provided the claimant with a motorcycle or any other means of conveyance or provided her with funds to secure public conveyance. Moreover, it affirmatively appears that the claimant had upon previous occasions of going upon the same errand always gone afoot. This she had done on an average of three or four times a week, and from the length of her employment and the number of times she had gone upon similar errands it may be reasonably inferred that her employer was cognizant of that method of travel. Even in the absence of such an inference and any evidence on the subject we would unhesitatingly hold that the usual, normal and customary method of going on errands but a few hundred feet along the street is by foot and not by passage over housetops, by aircraft, automobile, motorcycle or other unusual means of traversing so short a distance. Nothing appears in the record before us which would justify even an inference that the employer requested, permitted or expected the claimant to employ or make use of the unusual means of transit which was adopted by the latter in the present case.

It is apparent that the accident arose from peril added to by the conduct of claimant. Courts have uniformly held that an injury sustained by a workman entering or leaving the place of employment while using a more hazardous route than ordinarily used or by subjecting himself to an unusual or unnecessary danger does not arise out of his employment. This rule is referred to and adopted in Moore Scott Iron Works v. Industrial AccidentCommission, 172 Pac. (Cal.) 1114, — a case where a bolter-up who was in the hull of a ship in the course of construction, leaving his employment for the purpose of going to lunch, undertook to go down a scaffolding and ladder on the outside of the ship although there was another safe method provided for exit from the vessel. In the California case, as here, there was no evidence tending to show that the employer ever instructed the employee as to what exit from the ship should be used. The California court, however, refused to be impressed by the argument that the employee's injuries arose out of his employment.

An interesting case supporting our position herein is that ofInland Steel Co. v. Lambert, 118 N.E. (Ind.) 162. It is the more valuable for the quotation from the opinion of Lord Atkinson in the case of Barnes v. Nunnery Colliery Co., 5 B.W.C.C. 195 (not in the local library), where his Lordship gives the following illustration distinguishing between the negligent doing of a thing which a workman is employed to do and the doing of a thing not reasonably incidental to the employment: "For example, if a master employs a servant to carry his (the master's) letters on foot across the fields on a beaten path, or on foot by road to a neighboring post office, and the servant, having got the letters, went to the stables, mounted his master's horse, and proceeded to ride across country to the post office, was thrown and killed, or went to his master's garage, took out his motor car, and proceeded to drive by road to the post office, came in collision with something, and was killed, it could not be held, I think, according to reason or law, that the injury to the servant arose out of his employment, although in one sense he was about to do ultimately the thing he was employed to do, namely, to bring his master's letters to the post."

It is further held in the Wong Chee opinion that the provisions of the Workmen's Compensation Act should receive a broad construction at the hands of the courts in order that the benefits and purposes thereof may be extended to all proper cases. Yet by no liberality of construction may an employee, who without the knowledge or consent, express or implied, of his employer subjects himself to hazards or dangers not required by nor incident to his employment, be permitted to avail himself of the benefits of the Act, nor may the courts abrogate the fundamental rule of law which casts upon a claimant the burden of establishing all facts necessary to entitle him to compensation.

In the present case there was a complete failure of proof, proving or tending to prove that the injury to claimant arose out of her employment.

The judgment of the lower court is affirmed.