England v. Fairview School District , 58 Idaho 633 ( 1938 )

I am unable to agree to an affirmance of the judgment of the district court and thereby reverse the order of the industrial accident board in this case. I fail to find anything in the record that, to my mind, justifies the conclusion that the accident here complained of "arose out of and in course of her employment" as a teacher.

It is true that a teacher is required to do a great many things in the full discharge of her duties that cannot well be done during school hours at the schoolhouse or on the school grounds. It does not follow, however, that, without special direction or authority to that end, she may travel beyond the confines of her district, county and state to a city 195 miles distant to make a few purchases which might well have been secured through the due course of mail. It is admitted she had authority to make the purchases in question, but it is equally true that the trustees neither authorized this trip nor knew she meant to make a trip to Salt Lake for this or any other purpose.

In order that the facts, which influence my judgment, may clearly appear, I am quoting all the material parts of Miss England's testimony and also that of Mr. Geesey, chairman of the board of trustees, and Mrs. Butler, county superintendent of schools, who testified as follows:

Miss England:

"Q. You stated you left Fairview and went some place on Friday the 26th?

"A. I came to Pocatello.

"Q. What time did you leave Fairview?

"A. As I remember it was about five thirty.

"Q. How did you leave there?

"A. With Pete Farwell in his car. He was coming down. He was a bus driver.

"Q. You came to Pocatello?

"A. Yes.

"Q. What did you come to Pocatello for?

"A. I was planning to go to Salt Lake if I could, to get some supplies for my graduation exercises. I had not been able to get all the things I wanted and I thought perhaps if I got to Pocatello, I could find a way to either Salt Lake or Ogden and could buy these supplies much better because I couldn't find what I wanted here or in American Falls.

"Q. When was it you decided to go to Salt Lake?

"A. After we came to Pocatello. I saw Mr. Jackson and Mr. Dean and he said he had to go to Salt Lake to get some supplies for his business and of course when I knew he was going, I asked if I could go with them. They decided to go the next day and were coming back right away and that would give me time to get them and get back and take care of my school work besides.

"Q. You spoke something about getting some graduation things or some supplies, what did you intend to get?

"A. A motto for across the front of their stage and I couldn't get that at American Falls and I wanted to get graduation cards for the exercises and some presents for my graduating class.

"Q. Before you left the school had you made any arrangements to get these articles?

"A. I wrote my cousin in Preston and asked her for a book on graduation exercises and I was going to stop and get that.

"Q. Is she engaged in teaching school?

"A. Yes, for several years.

. . . . . . . . . . . . . .

"Q. Did you have any other business in mind in making the trip other than for the reasons you have already stated?

"A. No.

. . . . . . . . . . . . . .

"Q. After Mr. Jackson got through with his work what did you do then?

"A. Drove around for a while and the boys asked me — we were talking about this trip — and they asked me if I cared to go and I said I did as that was my main reason for coming to Pocatello.

"Q. Had you communicated with either of these boys before coming in?

"A. I had not.

"Q. When you came in you didn't know that you were going?

"A. I did not.

. . . . . . . . . . . . . .

"Q. When Jackson finished his conference with the carpenters, then what did you do?

"A. Went out in the car and drove around and we talked about our trip to Salt Lake and we decided when we better start.

"Q. How long did that take? How long did you drive around and talk about the trip?

"A. I can't be sure.

"Q. An hour?

"A. It was probably longer than that.

"Q. Two hours?

"A. Perhaps.

"Q. Can you fix a definite time — could it have been four or five or six?

"A. No, it wasn't that long. I don't know how long we stayed at the stand or how long we drove around.

. . . . . . . . . . . . . .

"Q. Did you have any conversation with them [Jackson and Dean] when they came outside the house that morning?

"A. Surely.

"Q. What about?

"A. Everything.

"Q. Including what?

"A. Most of the time we were talking about our trip, when we expected to get there and when we would get back. I told them it was imperative I be back in American Falls that night.

"Q. You observed them while you were talking to them?

"A. I did.

"Q. Would you say Mr. Dean was drunk or sober?

"A. I would say he was sober.

"Q. Did you have a bottle of whiskey in the car with you that morning?

"A. We did not.

"Q. Any beer?

"A. No.

"Q. No intoxicating beverages at all?

"A. No, nothing in the car.

. . . . . . . . . . . . . .

"Q. What do you call your graduating class the seventh and eighth grade?

"A. No, the five in the eighth grade.

"Q. You were going to buy presents for them?

"A. Yes.

"Q. How much were you going to spend for this?

"A. I was going to look around to see first.

"Q. You were paying for those out of your own pocket?

"A. Yes, for the presents.

"Q. Who was paying for the other things you were going to get?

"A. The trustees were to pay for the other things.

. . . . . . . . . . . . . .

"Q. Well then you were going down to Preston for the express purpose of getting a book containing ideas about commencement exercises and you were going to go on from there either to Salt Lake or Ogden to buy graduating presents for five grade school pupils?

"A. I was, and to buy other material for my graduation. I wanted programs and the class motto for across the front of the stage.

"Q. You were going all the way down there to get that material?

"A. I was.

. . . . . . . . . . . . . .

"Q. None of the members of the school board ordered you to go to Preston?

"A. They didn't order me to, no.

"Q. Did you talk it over with them?

"A. The school board told me I could get material I saw fit for the graduating exercises.

"Q. Did they tell you where to get it?

"A. They didn't usually stipulate the store I was to shop at.

"Q. Did you tell them you were going to get it?

"A. I did not.

"Q. At the time you left did any of the members of the school board know you were going to Preston to get this book and then on to Ogden and Salt Lake?

"A. They knew I was going to Pocatello. I didn't know for sure I was going on myself. I had to wait until I found a way down.

"Q. You had not talked it over with them?

"A. No more than they had told me to go ahead and get the material I told them I needed.

"Q. Where did you usually get your supplies?

"A. I never had had a graduation class before.

"Q. Never bought any supplies for the school previously?

"A. I had bought supplies but not graduating supplies.

"Q. Did you expect the school board to reimburse you for any expenses you incurred on this trip?

"A. I did.

"Q. Did you expect the school board to pay for your meals?

"A. No.

"Q. What expenses did you expect the board to reimburse you for?

"A. For all material I bought for the school.

"Q. Nothing for your traveling expenses?

"A. No. Because I was going to go with friends and if I didn't go with friends I couldn't afford the trip."

Mr. Geesey:

"Q. What — state if you know whether or not there were occasions when teachers over which you were trustee ever made purchases and presented the bill to you, which was paid?

"A. I do.

"Q. That was the custom, was it?

"A. For smaller articles, yes.

"Q. Do you happen to know if Miss England ever made purchases of supplies for small articles and presented the bill to you and it was paid?

"A. I do.

"Q. Was the bill paid?

"A. Yes.

"Q. Was it part of Miss England's duties to buy presents for the members of the graduating class?

"A. Not as far as the school board was concerned.

"Q. Had the school board ever ordered her to buy things for the graduating class?

[Objection sustained to this question.]

"Q. If you know, had the school board given Miss England any instructions to go to Preston or on to Logan or Salt Lake to buy any presents?

"A. They had not.

"Q. If you know, did Miss England take up the matter of buying any supplies with the school board?

"A. She had.

"Q. When was that?

"A. I think it was when we hired her for the following year.

"Q. When was that?

"A. Right after the school election, a week or such a matter.

"Q. When was that?

"A. I can't state the exact date.

"Q. This year?

"A. Yes.

"Q. What was said in that conversation?

"A. I am sure I couldn't repeat it.

"Q. In substance, if you remember?

"A. She wanted to know about getting a few articles for commencement exercises and we told her to get any small articles she might want and we would reimburse her for them.

"Q. Did you tell her where to get them?

"A. We did not.

"Q. Did she say where she was going to get them?

"A. She did not.

"Q. Miss England was hired by the school board of which you are chairman?

"A. She was.

"Q. You supervised the activities and duties of Miss England?

"A. The Board as a whole did that.

"Q. Did the Board as a whole give her her orders respecting her duties and activities with the school?

"A. They did."

Mrs. Butler:

"Q. Assuming that a teacher would leave her school room on a day other than a school day to purchase presents for her graduating class which she may have graduating from her school and in connection with school supplies, state whether or not in your opinion such duty would be considered by you in the scope and line and course of her employment?

"A. I would say 'yes.'

"Q. Would you say a teacher, teaching a graduating class in the grade school at Fairview District, having five pupils in her graduating class, would be in line of her duties if she went to San Francisco to get some presents for the graduating class?

"A. To San Francisco?

"Q. Yes.

"A. No.

"Q. Where did the various school districts in your county ordinarily obtain their supplies?

"A. From the Caxton Printers at Caldwell and Syms-York at Boise and John Graham's in Spokane.

"Q. They order them by mail?

"A. Very often, if they can get them that way.

"Q. Small, minor purchases, where did the average teacher go to get Such supplies?

"A. Quite often to Pocatello.

"Q. Very often to American Falls?

"A. Very seldom because the supply there is so limited.

"Q. They have a very good supply in Pocatello?

"A. Not especially. Material can be obtained here.

"Q. When they need emergency supplies, they write in to Pocatello?

"A. Unless they happen to have it within their means to go somewhere else for them.

"Q. Do you know anybody else that went any place other than Pocatello?

"A. I don't.

"Q. What do you mean then?

"A. I said unless they could go some place else.

"Q. Where could they go?

"A. Salt Lake, Ogden, or Boise.

"Q. Is it customary among the school teachers in your district, for the grade school teachers, to go down to Salt Lake without consulting the school board to buy supplies?

"A. No."

Now, since nothing was said about this teacher making the trip to Salt Lake or Ogden, for the purpose of securing these supplies, it follows that nothing could have been said about the mode of transportation she would adopt; and of course it must be conceded that there is a very great difference as to degree of safety between the kinds of transportation that might have been selected.

While the board might have been willing to assume the risks and hazards of a teacher driving an automobile or riding with someone else, six miles distant to American Falls or thirty miles distant to Pocatello, they might not have been willing to risk the added hazards of the teacher hitch-hiking or soliciting a free ride and the attendant risks on a 195-mile jaunt to Salt Lake City. The point I would make, by this course of reasoning, is very well illustrated by the evidence of the intoxicated condition of the driver and his companion with whom claimant rode from Pocatello to the time of the accident. Following this accident, and on the same day, Dean, who was driving the car at the time of the accident, was arrested and taken before a justice of the peace at Pocatello, charged with driving a motor vehicle on a public highway while under the influence of intoxicating liquor, to which charge he plead guilty and was fined $100 and costs. At the same time his companion, Jackson, was arrested and taken before the same court on the charge of "parading the public highway in an intoxicated condition," to which charge he plead guilty and was fined $10 and costs.

Now, it is said by Mr. Justice Morgan, in his opinion, that "Said testimony was entirely irrelevant and immaterial. This is not a negligence case. It is one involving the right to compensation, provided for in the workmen's compensation law. It does not involve a question as to who was to blame for the accident." I fully agree with the propositions enunciated in the foregoing quotation, to the effect that negligence was not an issue in the case; but I do not agree that the evidence was not admissible or competent to be considered by the Board, where the trip was undertaken as it was here by the claimantwithout any express authority and with no apparent impliedauthority. If claimant was traveling in the course of her employment in this particular case, it necessarily follows that she had a right to select anybody she pleased with whom to ride, or any other possible mode of transportation. She might ride on the railway train, the motor bus, by airplane, with a friend, an inebriate stranger, "hitch-hike," or drive her own conveyance. The board might be willing to extend this latitude of choice in selection to an employee for making a short-distance trip, within the immediate territory of employment, and, at the same time, be unalterably opposed to authorizing extension of the trip some hundreds of miles over dangerous roads and by still more hazardous means of transportation. I cannot think that authority to travel, from the schoolhouse, six miles to American Falls or a distance of thirty miles to Pocatello, could reasonably be extended, by inference or implication, to a trip extending to Ogden or Salt Lake (or it might as well have been to Butte or San Francisco, by plane) by such a hazardous and promiscuous means of transportation.

Counsel for claimant have called our special attention toWilliams v. School City of Winchester, (Ind.App.)10 N.E.2d 314, as a case in point here, supporting the contention that claimant is entitled to compensation. As I read and understood that case, however, it is decisive of the very point in question here, as it turns on the authority granted by the board of trustees to the claimant to make the trip. Williams was superintendent of the School City of Winchester, Indiana. It was the duty of the superintendent to investigate and report on applicants for employment as teachers in the schools. They had an application from a teacher who lived at Greentown, a short distance from Kokomo. A meeting of school officials was to be held at Kokomo and the trustees of School City of Winchester concluded it would be a good idea for the superintendent to go over and attend the meeting and, in that way, he might be able to learn something about the applicant from Greentown. One of the board of trustees testified:

"We thought it would be a good idea for him to attend this meeting because he was investigating teachers at that time and on this particular trip he could find out more about a teacher that he was interested in."

Williams started and was killed in an accident while on the trip. The Indiana court held that the accident occurred in and arose out of, the course of the employment of the superintendent and that the widow was entitled to compensation.

We have a very different case here. None of the Idaho cases go to the extent contended for here.

The judgment of the district court should be reversed and the order of the Board affirmed

I am authorized to say that Mr. Justice Budge concurs in this dissent.