Sheets v. Glenwood Telephone Co. ( 1938 )

Day, J.

The first question presented to this court on appeal in this compensation case is whether the employee had a compensable injury. The compensation court denied an award, but on appeal to the district court an award was made.

Nora B. Sheets was employed by the telephone company as the operator at Ayr. Under an arrangement with the company, this small exchange was placed in her home and she was to care for it throughout the day. There wa.s a loud alarm bell on the switchboard which would call her from other parts of the house and even the yard to attend to her duties there.

The question is presented to this court that the claim for compensation was barred by the statute of limitations. It is unnecessary to consider and determine the evidence as to this, however, because it is determined that this was not a compensable injury arising out of and in the course of her employment. The employee herself describes the accident in the following language: “I went out to the back porch to get a drink and also to put some milk or butter into the cooler we both used together. Of course, I knew it wouldn’t take long as the board wasn’t busy and the alarm was on. When I came back I stumbled or stepped on something and it threw me down and I fell on my hip and broke it.” Mrs. Dykeman, a neighbor, was with her at the time, and states that she brought her milk and gave it to her in the kitchen and then started back, stopping at the well. Ardell Bennett, the daughter of Mrs. Sheets, was also there. The group gathered around the well and put cream,' milk and butter in the cooler and got some water in a pail and then each left the pump. When Mrs. Sheets was on the back porch of her home, visiting with her neighbor and daughter, getting a pail of water, and putting milk in the cooler at the well, she was not within the course of her employment. The alarm bell did not sound, calling her back to her duty as an employee of the telephone company, and there is no evidence in the record that she was returning to her duties as telephone operator for the company. Her purpose in going upon the porch was not incidental to any work of the company. The fact that she may have taken a drink while on the porch at the pump does not make her deviation from her duty incidental to her employment under the circumstances of this case. From the nature of her employment and the salary paid, it was not expected that she would work all of the time. It was in the nature of a part time job. It required her continued attention, but not her constant work. She lived in her own home and did the required work. It cannot be said in such a case that every household duty was within the course of her employment or incidental thereto.

It presents a different situation than Miller v. Reisch Co., 132 Neb. 338, 271 N. W. 853, where one was held to be injured in the course of his employment who was assaulted by the foreman at the dining table where he was compelled to eat by his contract of employment, and as a part of his compensation. The facts in this case cannot bring it within the rule there announced that the eating of his dinner was incidental to his employment. It would require an unwarranted discussion to distinguish all the cases cited by the appellee, but suffice it to say that the facts of this case do not invoke the rules announced in Tragas v. Cudahy Packing Co., 110 Neb. 329, 193 N. W. 742, where the employee was sharpening tools used in his work during the noon hour; nor of Perry v. Johnson Fruit Co., 123 Neb. 558, 243 N. W. 655, where an employee, a traveling salesman, was repairing his own automobile so that he could set out on a trip for the employer as was his custom; nor of Struve v. City of Fremont, 125 Neb. 463, 250 N. W. 663, where a fire chief was preparing to go to- Omaha to attend a school as ordered by the city council. Especial attention has been given Speas v. Boone County, 119 Neb. 58, 227 N. W. 87, where an employee was kicked by a horse during the noon hour, while he was feeding his team at his own home. This case was discussed by Chief Justice Goss who wrote it, in De Porte v. State Furniture Co., 129 Neb. 282, 261 N. W. 419, in which he said this case “goes as far as we have ever gone in holding an injury compensable when it did not occur during the time the workman was actually employed at his work, or actually within the area where his work was contracted to be performed and during the period he was employed at his work. But the feeding of his team by Speas was the usual incident of the noon hour and he was injured while preparing to feed them.” There was not then, and there is not now, any intention of extending the course of employment so that all accidents suffered by a workman should be within the compensation law as arising from the employment. The legislature did not intend to impose such a liability upon employers, and this court acting within its proper sphere cannot do so. All of the cases called to our attention, including those mentioned, are distinguishable upon the facts. This court is committed to the view that, in order that an injury be compensable under the workmen’s compensation law, it must arise out of and in the course of employment. Suverkrubbe v. Village of Fort Calhoun, 127 Neb. 472, 256 N. W. 47; McNaught v. Standard Oil Co., 128 Neb. 517, 259 N. W. 517.

A sister state has stated the rule applicable to a situation such as this as, substantially, that there must be a causal connection between the employment and the injury before a recovery can be allowed on a disability arising out of and in the course of employment. Christensen v. Hauff Bros., 193 Ia. 1084, 188 N. W. 851.

The authorities of this and other states support the view that, where an employee deviates from her employment and is injured while engaged in her own business or employment, the injury is not compensable under the workmen’s compensation law. De Porte v. State Furniture Co., supra; Hammond v. Keim, 128 Neb. 310, 258 N. W. 478; McNaught v. Standard Oil Co., supra; 71 C. J. 678.

The evidence in the record examined and establishes that accident and incidental injuries did not arise out of and in the course of employment.

Reversed and dismissed.