Lamm v. Silver Falls Timber Co. , 133 Or. 468 ( 1929 )

Former opinion and judgment of circuit court reversed on rehearing March 18, 1930 ON REHEARING (286 P. 527) In Banc. Our previous opinion, we believe, unduly confines the operation of the Workmen's Compensation Act to a scope narrower than that contemplated by its broad and humane purposes; we also believe that the plaintiff's injury, for which he seeks redress from the defendant, befell him in an "accident arising out of and in the course of his employment"; we have, therefore, concluded that our previous decision cannot be sustained, that the judgment of the circuit court must be reversed, and that the plaintiff's action should be dismissed. The circumstances, we feel, warrant us in stating fully the manner in which we have reached our conclusions.

Before considering again the construction which should be placed upon the above-quoted words which the parties seem to feel are the crucial ones of the act, it may be well to advert once more to the facts before us. The plaintiff, after having been in the employ of the defendant for many months, engaged in logging operations, concluded to return to his home in Silverton on Saturday, November 6, 1926, for a short visit; apparently he had no specific objective in mind which he had determined to accomplish during his absence from the defendant's camp. It is clear that neither he nor the defendant had any thought of terminating the plaintiff's employment and that he expected to shortly return and resume his labors. Thus he retained his bunk house; his blankets, personal belongings, etc., remained in it at the defendant's camp and in fact when he concluded his labors on Friday the circumstances were no different than when he quit his work on any other day with the exception that he did not expect to resume his task the following Monday. On Tuesday, November 9, the plaintiff decided to return so that he could again resume his work on Wednesday morning, November 10; such being his plan he presented himself at the Silverton terminus of defendant's logging railroad and spoke to an employee in charge of its logging train which was about to start for the camp. He was accepted aboard the train and in harmony with the uniform practice was charged no fare. This, together with the statement of facts contained in the previous decision, will suffice for the purpose of setting forth the relationship between the parties. It may be well, however, to remind ourselves of a few facts concerning logging camps which are well known. Work in these camps is distinguishable from that in the factory in the important fact that the logger's employment is discharged at a place which is far removed from his home, places of recreation and facilities for supplying his wants. He is unable to leave his home and proceed directly to the logging operations by means of a street-car, automobile, or other similar conveyance which takes the city employee to the factory. Due to the conditions which surround the scene of logging operations the woodsman is first hauled to the logging camp upon the logging railroad; from the latter place he is hauled each morning to the actual scene of his labors, and in the evening back again to the camp. The logging railroad, the camp, the donkey engines, cables, axes and saws, are all a part of the equipment with which the logging operations are conducted. It will be readily conceded that but few loggers would make the trip from the end of the logging railroad to the camp but for the fact that their employment necessitates them. When the factory employee desires to go to or leave his employer's plant there are generally several routes available, all consisting of public streets; but when the logger undertakes to go or leave the scene of his labors there is generally only one practical way that he may employ, that is the logging railroad. Thus, it can be said that in this manner the employer controls the employee's movements until the latter has reached the terminal of the railroad. While the logger is staying at the camp with its bunk houses, limited boarding accommodations and meager facilities for supplying the wants of life he finds frequent occasion to quit work for short periods of time and visit the city. These temporary cessations from labor are due to the nature of the logging camp and the kind of work in which the men are engaged; thus Varrelman (see Varrelman v. Flora LoggingCo.) quit for a day to supply himself with a pair of shoes. Without shoes, clothing, dental and medical attention the employee might be unable to continue his labors; and it is easily conceivable that unless the employers afforded facilities so that the logger could occasionally get out of the camp, visit his home and obtain the recreation not afforded by the camp an intelligent type of workman would not offer himself for work in the woods. It follows that to supply the workman with the means of going "from the camp to the outside world," as the parties have termed these trips, serves not only the purposes of the employee but also renders the business of the employer possible. In the present case the logging railroad was the most practical means whereby the logger could go from his place of employment to the city; if he did not use the railroad he was compelled to tramp over a trail, six or seven miles in length, which connected with the county road, 10 or 12 miles in length, and thus was brought to the city of Silverton. In the Varrelman case the logging railroad was the only means of ingress to and egress from the camp. Passage back and forth upon these logging trains constitutes one of the hazards incident to the employment of the logger; the proof of this statement can be readily obtained by an inspection of the reports of this court and of the Supreme Court of Washington, wherein will be found numerous instances of actions by loggers for injuries sustained in passing to and from the camp on the crude equipment provided by the employer.

From the foregoing the conclusion seems justifiable that the plaintiff would not have been injured but for his employment. It is true that when he was injured he was not working for the defendant, but he was in its employ. His work did not begin until the following morning; but his employment began when the defendant accepted the plaintiff into its employ some months previously. Hence the employment continued, not only while he was working for the defendant in the woods but also upon his trip to Silverton and back.

We come now to the more specific question whether the injury arose out of and in the course of the employment. This court, as well as other courts, has many times pointed out that the problem whether an injury arises out of and in the course of the employment is not to be determined by the precepts of the common law governing the relationship between master and servant; these ancient rules include the principles defining negligence, assumption of risk, fellow servant doctrine, contributory negligence, etc. Likewise all courts are agreed that there should be accorded to the Workmen's Compensation Act a broad and liberal construction that doubtful cases should be resolved in favor of compensation, and that the humane purposes which these acts seek to serve leave no room for narrow technical construction. Further, the cases agree that these acts do not mean one thing when it is to the advantage of an employee so to maintain, and something else when an employer invokes the protection of the act in his favor.

One of the purposes of the Workmen's Compensation Acts is to broaden the right of employees to compensation for injuries due to their employment. Since these acts contemplate compensation for an injury arising out of circumstances which would not afford the employee a cause of action, the right to redress is not tested by determining whether a right of action could be maintained against the employer. Stark v. State IndustrialAccident Commission, 103 Or. 80 (204 P. 151). The word "employment," as used in such legislation, is construed in its popular significance. We quote from the decision of the Montana court in Wirta v. North Butte Mining Co., 64 Mont. 279 (210 P. 332, 30 A.L.R. 964):

"The word ``employment,' as used in the Workmen's Compensation Act, does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. * * * To say that plaintiff ``ceased' working for the defendant is not equivalent to saying that he severed the relation of employer and employee."

Since the courts have recognized the broad humane purposes of the act they have readily perceived that the mere fact that the injury befell the claimant at a moment when he was not performing manual labor for his employer does not necessarily prove that the accident did not arise out of or in the course of the employment. The words just mentioned which are a part of most of the acts are never qualified by the limitation that the injury must have been inflicted during regular working hours: Honaker Feeney v. Hartley, 140 Va. 1 (124 S.E. 220). From Larke v. John Hancock Mutual Life InsuranceCo., 90 Conn. 303 (97 A. 320 L.R.A. 1916E, 584), we quote: "The period of employment has sometimes been held to cover a period other than that for which wages are paid." And from our own decision in Wells v. Clark Wilson Lbr. Co., 114 Or. 297 (235 P. 283), the following is taken: "Yet one may be under such a contract with another as to be a present employee, although the actual work incident to the employment may not be begun until a future day." And since all workmen's compensation legislation is noticeably inspired by the English act the following language quoted from John Stewart Son v. Longhurst (1917) A.C. 249 (Ann. Cas. 1917D 196), is appropriate: "It has been established by a series of decisions that employment, for the purposes of the Workmen's Compensation Act, may in many cases be regarded as existing before the actual operation of the workman has begun, and that it may continue to exist after the actual work has ceased." In other words, the work may suspend and yet the employment continue. We shall later refer to two cases which applied these principles in a very practical manner. In the one the deceased employee had maintained his home in North Dakota but performed his services in Minnesota. He lost his life while returning from the latter state to his home to spend the week-end. In the other case a school teacher was killed at a railroad crossing while on her way to attend a teacher's institute. It was desirable that she should attend the institute, but the law did not make attendance mandatory. In both cases the courts held that the death arose in an "accident arising out of and in the course of his employment" and compensation was ordered.

Since employment is construed in its popular signification an employee is frequently granted compensation from the fund, even though his hours of service have not yet begun, or have ended, and even though he is not upon the premises of his employer engaged in physical service of the latter. Thus in Holt Lmbr.Co. v. Industrial Com. of Wisconsin, 168 Wis. 381 (170 N.W. 366), the court said: "This court has held that the relation of master and servant extends beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed." Numerous authorities are cited by the court in support of its text; in some the employee was held entitled to compensation when an injury befell him while he was eating lunch upon the premises of his employer. Additional authorities of like kind are ZurichGeneral Accident Liability Ins. Co. v. Brunson et al.,15 Fed 2d 906; Bylow v. St. Regis Paper Co., 179 A.D. 555 (166 N YS. 874), and Corvi v. Stiles and Reynolds Brick Co.,103 Conn. 449 (130 A. 674). Other authorities cited by the Wisconsin court in support of the principle stated by the above quotation hold that an employee is entitled to compensation for an injury sustained by him while sleeping upon the premises of the employer when that act was contemplated by his contract of employment; those authorities, like the first group, hold that the injury arose out of and was incidental to his employment. An additional well-reasoned case is Giliotti v. Hoffman Catering Co., 246 N.Y. 279 (158 N.E. 621, 58 A.L.R. 500). In other words, the period of employment is not confined to the period for which wages are paid: Larke v. John Hancock Mutual Life Ins. Co., supra. FromGiliotti v. Hoffman Catering Co., supra, we quote:

"The relation of employer and employee did not cease because the employee was off duty. There was a continuity of employment. Sleeping on the premises in a room provided by the employer in the servants' quarters was an incident of the employment, mutually beneficial to employer and employee, not a temporary suspension of it. * * *

"The accident which resulted in Giliotti's death, therefore, arose during the course of his employment."

Well-reasoned authority cited with approval by later adjudications may be found which hold that an employee, who is procuring his lunch during an hour for which he is not being paid and is on premises neither owned nor controlled by the employer, is subject to compensation for an injury which thus befalls him. These were the facts in Re Sundine's Case, 218 Mass. 1 (105 N.E. 433, L.R.A. 1918A, 318), from which we quote:

"The first contention, that she was not in the employ of Olsen while she was going to lunch, cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely temporary purpose and was revived only upon her return to the workroom. It was an incident of her employment to go out for this purpose: Boyle v. Columbian Fire Proofing Co.,182 Mass. 93, 102. The decisions upon similar questions under the English act are to the same effect: Blovelt v. Sawyer (1904), 1 K.B. 271, which went on the ground that the dinner hour, though not paid for, was yet included in the time of employment:Moore v. Manchester Liners, 3 B.W.C.C. 527, where the House of Lords reversed the decision of the Court of Appeal, reported in (1909) 1 K.B. 417, and held, following the dissenting opinion of Moulton, L.J., that a temporary absence by permission, though apparently of longer duration than would have been likely in the case before us, did not suspend the employment, and that an injury occurring during such a temporary absence arose ``out of and in the course of' the employment: Cane v. Norton HillColliery Co., 2 B.W.C.C. 42, and (1909) 2 K.B. 539; Keenan v.Flemington Coal Co., 40 Sc. L.R. 144; MacKenzie v. ColtnessIron Co., 41 Sc. L.R. 6."

And in Sexton v. Public Service Commission, 180 App. Div. 111 (167 N.Y.S. 493), an employee was held entitled to compensation for an injury sustained while taking a shower bath. The facts were that he was supervising the construction of a part of the subway of New York city. In connection with his work he became so dirty and covered with filth that he felt it necessary to take a bath before he could continue his work. While taking the bath his foot slipped on the marble floor and he sustained an injury. Held:

"It is plain that if the claimant was taking a bath for his own pleasure or comfort, and sustained an injury thereby, it would not arise out of and in the course of his employment in building the subway. But the evidence and findings show that the nature of the employment was such that the employee became very dirty * * * and the bath was a necessity arising out of the employment and to enable him to continue it. * * * We conclude, therefore, that it was a duty of and an incident to his employment that he should be washed in order to continue his employment, and that the Commission committed no error in finding that the injury arose out of and in the course of his employment."

A careful study of the foregoing cases, as well as the ones to which reference will later be made, seems to warrant the conclusion that the courts deem that the theory of Workmen's Compensation Acts is to grant compensation to an injured workman on account of his status. He is an integral part of the industry and the latter should bear the costs of his recovery like it bears the costs incurred by the replacement of mechanical parts. When the status of an employee, that is, his relationship to the industry, brings him within the zone where its hazards cause an injury to befall him he is entitled to compensation. The courts which allowed the above recoveries, and other courts to whose decisions we shall later advert, evidently did not confine their searches to the doubtful words "accident arising out of and in the course of his employment," but bore in mind this general purpose of the act as revealed by its entire text. Such being the sources of their interpretation they found no obstacle to an allowance of compensation whenever the employee established that his relationship to the industry brought him within the zone where one of its hazards inflicted an injury upon him. The modern authorities seem to accept the above as the proper basis for construction. Our conclusion is especially suggested by the Federal Supreme Court in the case of Cudahy Packing Co. v.Parramore, 263 U.S. 418 (44 S. Ct. 153, 68 L. Ed. 366, 30 A.L.R. 532), where an employee sustained an injury upon the public streets while approaching the plant of his employer several minutes before the hour of work was to arrive. We quote from the decision the following:

"Workmen's Compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital — the one for the sake of the wages and the other for the sake of the profits. The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured. And this is not to impose liability upon one person for an injury sustained by another with which the former has no connection; but it is to say that it is enough if there be a casual connection between the injury and the business in which he employs the latter — a connection substantially contributory though it need not be the sole or proximate cause. Legislation which imposes liability for an injury thus related to the employment, among other justifying circumstances, has a tendency to promote a more equitable distribution of the economic burdens in cases of personal injury or death resulting from accidents in the course of industrial employment, and is a matter of sufficient public concern (Mountain Timber Co. v. Washington, supra, p. 239) to escape condemnation as arbitrary, capricious or clearly unreasonable. Whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case. The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such casual relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree."

The above being the test by which the right to compensation is determined, the propriety of the awards in the noon-hour lunch, sleeping upon the premises, shower bath, etc., cases becomes apparent. We shall refer to the facts of one of these cases by way of summary. In Zurich General Accident Liability Ins. Co. v. Brunson,15 F.2d 906, employees who had been working in the woods built a fire during the noon hour on the steep slope to dry their clothes and warm themselves while they ate their lunches. Somehow the plaintiff, who was one of them, fell down the slope, into the fire and sustained injuries. The holding of the Circuit Court of Appeals for the Ninth Circuit that this injury arose out of and in the course of the employment is easily explainable under the above interpretation of those who are entitled to the compensation provided by the act.

In all of the foregoing instances the injury, like that in our case, was sustained while the employee was doing something which was ancillary to his employment. We quote once more from Larkev. John Hancock Mutual Life Ins. Co., supra:

"The duty ancillary or incident to the employment has in some instances been held to include the doing of something primarily for the benefit of the employee, but ultimately it is assumed for the master, as the preparation of a noon-hour lunch, or the doing of something by the employee which he reasonably believes for the master's interest."

One might be tempted to conclude that in the various cases reviewed the court felt that eating the lunch, sleeping upon the premises, or taking the shower bath were acts indirectly for the benefit of the employer, and that therefore an injury sustained in the course of such acts should be compensated out of the fund. Possibly a better theory of these decisions is that in all of these cases the nature of the work was such that the workmen's usefulness was increased if he ate his lunch near his workbench, or slept upon the premises at night so that he might start his fires early in the morning; thus since he was exposed to the hazards of the industry while eating or sleeping an award of compensation was held justifiable. Such being the trend of authority it would seem singular to deny compensation to another who in returning to work, and thus doing an act beneficial to his employer, is injured by one of the hazards of the industry.

The above will suffice to establish the fact that in order to be entitled to compensation it is not necessary that at the time of the accident (1) the employee was doing something for the direct benefit of the master, (2) that he was at his place of duty, and (3) that he was injured during working hours. In practically all of the foregoing cases all three of these elements were missing.

The next group of cases which we shall review may be preceded by the following quotation from Wells v. Clark Wilson LumberCo., supra:

"Numerous authorities are cited by appellant to the effect that an employee going to or returning from his work or going to the place where he is employed to perform labor is ``acting in the course of his employment,' and is subject to the provisions of the Workmen's Compensation Act. This is sound law."

In the cases of the type adverted to by the above quotation the employee was held entitled to the benefit of the act whenever his relationship to the industry subjected him to its hazards in a greater degree than an ordinary member of the public. It will be observed, as we proceed, that the mere fact that the morning whistle had not blown was immaterial; likewise no controlling significance was attached to the fact that the accident occurred upon a public street and that the tort-feasor was a third party. The rule expressed in Wells v. Clark Wilson Lumber Co. is general. The cases which it suggests may be more specifically classified as follows: (1) An employee upon whom an injury is inflicted, while being conveyed to or from his work in a conveyance furnished by his employer as an incident of the contract of employment, is generally held entitled to compensation: American Coal MiningCo. v. Crenshaw, 77 Ind. App. 644 (133 N.E. 394); New StauntonCoal Co. v. Industrial Com., 304 Ill. 613 (136 N.E. 782);Central Const. Co. v. Harrison, 137 Md. 256 (112 A. 627); InRe Donovan, 217 Mass. 76 (104 N.E. 431 Ann. Cas. 1915C, 778);State v. District Court, 141 Minn. 348 (170 N.W. 218); Fisherv. Tidewater Bldg. Co., 96 N.J.L. 103 (114 A. 150); Littlerv. George A. Fuller Co., 223 N.Y. 369 (119 N.E. 554); DeCamp v.Youngstown Municipal Ry. Co., 110 Ohio St. 376 (144 N.E. 128);McClain v. Kingsport Improvement Corp., 147 Tenn. 130 (245 S.W. 837); Richards v. Morris, 110 L.T.R. (N.S.) 496; E. ClemensHorst Co. v. Hartford Acc. Indemnity Co., 27 F.2d 42;Norwood v. Tellico River Lumbr. Co., 146 Tenn. 682 (244 S.W. 490, 24 A.L.R. 1227); Anderson v. Hickman Co., 21 Butterworth's Workmen's Compen. Cases, 369; Hackley Co. v.Industrial Comm., 165 Wis. 586 (162 N.W. 921 L.R.A. 1918A, 277);Scalia v. American Sumatra Tobacco Co., 93 Conn. 82 (105 A. 346); Morrison v. Owners, etc., 21 B.W.C.C. 163; Wirta v.North Buttle Mining Co., 64 Mont. 279 (210 P. 332, 30 A.L.R. 964), and Prof. Francis H. Bohlen, 25 Harv. L. Rev. 401. (2) Generally an injury to the employee is regarded as one arising out of and in the course of the employment when it was sustained upon a road or other way leading to the plant which the contract of employment contemplated the workmen should use in going to and from their places of employment; that the road is a public one is immaterial provided the demands of the employment exposed the injured man to the hazards in a greater degree than the common public: SylviaProcaccino v. E. Horton Sons, 95 Conn. 408 (111 A. 594);Robertdon v. Allen Bros., 77 L.J.K.B. (N.S.) 1072; CudahyPacking Co. v. Parramore, supra; Littlefield's Case 126 Me. 159 (136 A. 724); Dominguez v. Pendola, 46 Cal. App. 220 (188 P. 1025); Swanson v. Latham, 92 Conn. 87 (101 A. 492);Bountiful Brick Co. v. Giles, 276 U.S. 154 (48 S. Ct. 22172 L. Ed. 507); Wabnec v. Clemons Logging Co., 146 Wash. 469 (263 P. 592); E. Clemens Horst Co. v. Hartford Acc. Indemn. Co., supra. (3) An injury arises out of and in the course of the employment where it is sustained upon the premises of the employer and is a rational consequence of some hazard connected with the employment; or stated otherwise, if there is a casual connection between the employment and the injury sustained upon the employer's premises it is deemed to have arisen out of the employment, even though the danger to which the employee was exposed originated outside of his employment: Stark v. StateIndustrial Acc. Com., 103 Or. 80 (204 P. 151); Wirta v. NorthButte Mining Co., supra; Holt Lmbr. Co. v. Industrial Com. ofWis., supra; Lynch v. City of New York, 242 N.Y. 115 (151 N.E. 149); Favorite v. Kalamazoo St. Hospital, 238 Mich. 566 (214 N.W. 229); Zurich General Acc., etc., Co. v. Brunson,15 Fed. 2d 906; Mann v. Glastonburg Knitting Co., 90 Conn. 116 (96 A. 368 L.R.A. 1916D, 86), and Giliotti v. Hoffman CateringCo., 246 N.Y. 279 (158 N.E. 621, 56 A.L.R. 500).

We have stated the above principles broadly because it is difficult to formulate precise rules which will justly govern all cases. We are satisfied, however, that the purpose of legislation of this type is to make every industrial enterprise bear the pecuniary loss of all accidental injuries to its employees sustained by them as a result of risks to which they were exposed by reason of their employment in a substantially greater degree than the ordinary members of the public. The above principles, which we have endeavored to deduce from the foregoing cases, seem to be applicable to the controversy before us; for the plaintiff was upon the premises of his employer, being transported upon a conveyance furnished and operated by his employer; the route that was being traveled to gain access to the camp and logging operations was the most practical one available and was placed at plaintiff's disposal by the defendant; there existed between this injury which the plaintiff sustained upon the premises of his employer, and his employment, a direct substantial causal connection; and finally the plaintiff's status as an employee was the direct cause of subjecting him to this industrial hazard. But for his status he would not have been there.

A review of the facts of some of the cases just cited may be helpful. Of those cited in support of the first principle we notice:

In Scalia v. American Sumatra Tobacco Co., 93 Conn. 82 (105 A. 346), the tobacco company desired to secure the services of some women tobacco pickers for its plantation. Just prior to this the two decedents and some other women had been employed upon another plantation where the work was nearing completion. The defendant sent its agent to the latter plantation to invite all women tobacco pickers who might care to work on its plantation to be at the waiting station in the village of Enfield the next morning to be transported to its plantation. The two decedents the following morning presented themselves at the appointed place, got in the auto, and were later killed when it skidded. It was held that the relationship was that of master and servant and not carrier and passenger, and that the claim was proper under the Workmen's Compensation Act.

In American Coal Mining Co. v. Crenshaw, 77 Ind. App. 644 (133 N.E. 394), some coal miners were transported daily four miles from the city to the mine on a railroad train owned by a public carrier. Each miner paid the defendant, employer, $1.25 per month for the privilege of riding on the train; the total thus collected was substantially sufficient to pay the railroad company its charges for operating the train. It was held that plaintiff, who was injured while upon the train, was entitled to compensation under the Workmen's Compensation Act.

In Central Construction Co. v. Harrison, supra, the employee was also injured while being transported. Here the railroad fare was paid by the federal government.

We quote from State v. District Court, 141 Minn. 348 (170 N.W. 218):

"The relator claims that the accident did not occur in the course of Chambers' employment. He was engaged as a solicitor in the grain business and had his home at Bismarck, which was the point from which he worked. He had been using the auto in the course of his business during the day and was returning homeward. The evidence sustains, if indeed it does not require, a finding that he was in the course of his employment." See also Lawrencev. Matthews, 21 B.W.C.C. 345.

In Littler v. George A. Fuller Co., supra,

"The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from its place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was ``on his way * * * from his duty within the precincts of the company': De Voe v. N.Y. StreetRailways, 218 N.Y. 318, 320 (113 N.E. 256, L.R.A. 1917 A. 250). The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded."

From Wirta v. North Butte Mining Co., supra, we quote:

"An examination of the many cases decided by the courts and Industrial Accident Boards in this and in other countries discloses that there are but few exceptions to the rule that the employer and employee are within the provisions of the Workmen's Compensation Law when the employee is upon the employer's premises, whether engaged in some line of duty connected with his employment or in going to and from his employment. The rule has been applied to cases of an employee employed in a mine, and it has been frequently held that the obligation of the employer does not cease toward the employee until after the employee has been brought to the surface."

We quote from Professor Bohlen's splendid article the following:

"A distinction is indicated though not clearly expressed, between sailors going ashore with and without leave. In the first case he may not recover for injuries received upon the public docks or quays, nor while attempting to board a public boat hired by him to take him to his vessel. Some of the earlier cases required the sailor to have actually returned to the vessel itself, and did not regard as part of the vessel gangways and ladders, though owned and controlled by the ship and provided as a means of access thereto or so used with the knowledge and permission of those in command. Recent cases, however, hold that any means or access provided by the vessel and permitted by those in command to be used for that purpose are a part of the vessel, and that a sailor on his return from shore-leave reenters employment when he has actually reached such means of access. These cases proceed upon the same principles as those which, as has been seen, determine when the employment of a workman entering his employer's premises begins; the vessel is regarded as the place at which the work is to be done, the ladders and gangways which are provided by the vessel and under its control are the equivalent of those parts of the premises provided by the master as an entrance to and exit from the place of work." See also Morrison v. Owners, etc., 21 B.W.C.C. 163.

In Richards v. Morris, supra, the deceased was a laborer employed upon a farm situated upon an island two miles distant from the coast. His wife resided on the mainland. His employer permitted him to go home to his wife every Saturday night returning to the island the following Monday morning, and for the purpose of enabling him to cross provided a small boat. The crossing was always dangerous. Held, that when he was fatally injured while attempting to land from the boat upon arrival at the mainland, the injury occurred out of and in the course of his employment and his widow was entitled to compensation.

In Hackley Co. v. Industrial Com. of Wisconsin, supra, the plaintiff was an employee of a logging company at one of its camps. In February of 1915 he told his foreman that he was going to take a vacation, and the latter therefore told him to go to Phelps, a nearby town, where the logging company maintained its office, to get his pay. While riding to Phelps upon the logging train, operated by the employer, which was the method the employees generally used in going back and forth, he was injured. It was held that he was entitled to compensation.

In Fisher v. Tidewater, supra, the employee, after quitting work went to board a train to go to a certain ferry station on his way home. While attempting to board the shuttle car, provided for the employees by the employer, he was struck by a train of another railroad and killed. The method of furnishing such transportation was for the company to give tickets which were surrendered to the conductor as fare. It was held that the accident "arose out of and in the course of the employment." Here it will be observed that the injury did not happen while the employee was being transported, but while he was on his way to transportation.

The respondent has called to our attention the two recent cases of Walker v. Hyde, 43 Idaho 625 (253 P. 1104), and Denver R.G.W.R. Co. v. Industrial Com., (Utah) (269 P. 512, 62 A.L.R. 1436); he suggests that they reject the rule which we have deduced from the foregoing cases. Authorities can readily be found which are contra to those we have just digested; but the two recent ones, submitted by the defendant, recognize the principle which underlies those we have reviewed. For instance inWalker v. Hyde, where a woodsman was killed by a truck while returning to his place of labor after eating his noon lunch, the court pointed out, "No transportation was furnished or was to be furnished by the employer. If the truck had been furnished as a means of transportation there would be no question about the right of claimants to an award." In Denver R.G.W.R. Co. v.Industrial Com. the employer provided his men with free transportation by means of a truck from a tool house to their place of work. The men were paid by the hour and their time was computed from when they left the tool house until they returned in the evening. Upon the occasion in question the deceased boarded the truck three-fourths of a mile before it reached the tool house and was killed while the truck was passing through town on its way to the tool house. The court held no compensation could be recovered because the terms of the employment contemplated transportation only from the tool house, and the risks and hazards in going to the latter were not peculiar to the deceased's employment.

A brief review of some of the cases cited in support of the second principle may be helpful.

In Cudahy Packing Co. v. Parramore, supra, the plaintiff was in the employ of the packing company and sustained an injury while on the public streets on his way to work. The Utah compensation act provided for payment of compensation for personal injury suffered by employees "by accident arising out of or in the course of his employment." The packing plant was located about six miles north of Salt Lake City; its employees generally resided in that city. In going to and from the plant the workmen proceeded along the main highway running north and south and passing the plant at a distance of one-half mile to the east. From this point a public road runs west to and beyond the plant, crossed, before reaching the plant, by three lines of railroad. The only practical way of ingress and egress for employees was along this road and across these railway tracks; this was the way constantly used. The plaintiff lived in Salt Lake City. On the morning of his injury he rode to the plant in the automobile of another employee for the purpose of going to work. The automobile crossed over two of the railway tracks, and, when upon the third, was struck by an engine and the plaintiff was killed. This happened about seven minutes before the time when the plaintiff would have begun his work. The industrial commission of Utah awarded compensation; the Supreme Court of Utah affirmed the award, and the latter was upheld and affirmed by the federal supreme court.

From Bountiful Brick Co. et al. v. Giles et al., supra, we quote:

"And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer's premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. * * *

"In other words the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer."

In Sylvia Procaccino v. E. Horton Sons, supra, the plaintiff was an employee of the defendant. The defendant's plant and that of several others was located upon an area of land between the Connecticut river and a canal. Immediately adjacent to the canal and running parallel to it were some railway tracks. Crossing the canal were two foot-bridges, one of which was owned by a paper company and the other was owned jointly by the defendant and another. The employees of the defendant and those of the other plants in going to and from their work used either one of these foot-bridges and the paths across the railway tracks which led to the different plants. The railway tracks and the land crossed by the paths were private property. Upon the occasion in question the decedent, when returning to work at the defendant's plant, after having dinner at his home and while crossing the tracks just before reaching the foot-bridge of the paper company, was struck by a train and was instantly killed. The compensation commission refused to make an award upon the ground that the death did not arise out of the decedent's employment. The Connecticut Supreme Court held that this was an injury for which the Workmen's Compensation Act contemplated an award. We quote from this decision as follows:

"Under these circumstances this employee was within the scope of his employment when he was passing to or from his work at the plant over the private property lying between Main street and the plant. In other words the use of this method of approach to the plant by this employee was an incidental term of his contract of employment annexed to it by the consent of his employers:Merlino v. Connecticut Quarries Co., 93 Conn. 57 (104 A. 396). When this employee, under the facts found, entered upon the private property lying between Main street and the defendant's plant, he came within the zone of his employment, and all dangers and perils incident to the use of this method of approach were perils incident to and arising out of his employment."

In Robertson v. Allen Bros., 77 L.J.K.B., (N.S.) 1072, the steward of a ship was returning from shore leave in an intoxicated condition and received injuries while attempting to board the ship by way of the cargo skid or stage instead of the gangway; compensation was allowed. In John Stewart Son v.Longhurst, 1917 A.C. (Eng.) 247 (Ann. Cas. 1917D, 196), a carpenter had been employed in making repairs to a barge, and at the conclusion of the day's work, while passing along the quay, homeward bound, mistook his way in the darkness, fell into the lock and was drowned. Compensation was allowed.

In bringing to a close our review of this group of cases we quote from a comprehensive note in 40 A.R.L. 1477 the following words of the editor:

"While no general rule can be laid down, it may be said that the majority of the cases involving injury to an employee on his way to or from his work on the premises of his employer's customer hold that the injury arose out of and in the course of his employment, and that the courts will generally, unless the facts imperatively require a contrary decision, hold the employee in such case entitled to compensation, is highly probable, because, as stated in the opinion in Re Betts (1918)66 Ind. App. 484 (118 N.E. 551), there is a tendency of the courts, indicated in the more recent cases, to give to compensation acts an interpretation as broad and liberal in favor of the employee as their provisions will permit, in furtherance of the humane purpose which prompted their enactment."

We come now to a brief review of the cases which illustrate the application of the third principle which we have sought to establish.

Our own case of Stark v. State Industrial Accident Com., supra, is a good illustration. There some employees of a ship-building company, while engaged in play during a momentary cessation of their labors, turned the compressed air from the air hose upon one of their fellow employees. He later died and his widow sought relief under the act. We held that compensation was proper.

In Lynch v. City of New York the claimant was a helper in a city hospital, situated on an island owned by the city and occupied entirely by city institutions. After completing her work for the day she prepared to leave the island to go to the city; while on her way from the nurses' home, on a sidewalk which was the proper passageway for her to take, she fell and received injuries. It was held that her employment did not cease when she left the hospital but continued while she was on the island leaving and returning thereto on the route provided by the employer and that since her employer exposed her to the hazards of the way in and out she was entitled to compensation.

Favorite v. Kalamazoo State Hospital, supra, is quite similar in its facts and holding.

The facts disposed of in Zurich General Accident, etc., Co. v.Brunson, supra, we have already reviewed. That case well illustrates the application of the principle now under consideration.

From a note in 49 A.L.R. 424, we quote:

"It is generally held that an injury sustained by a miner, while proceeding, on the premises of his employer, to his place of employment, or an injury sustained while preparing to begin his day's work, as while changing his clothes, arises out of and in the course of his employment within the meaning of the act."

In Mann v. Glastonbury Knitting Co., 90 Conn. 116, (96 A. 368 L.R.A. 1916D, 86), the court pointed out that where an injury arising from a risk of the business is suffered while the employee, though not doing the work for which he was employed, is still doing something which the employer has expressly or tacitly consented that his employees might do, incidental to their employment, at that time and place, the injured employee is within the scope of his employment. A good illustration is afforded in Giliotti v. Hoffman Catering Co.,246 N.Y. 279 (158 N.E. 621, 50 A.L.R. 500); here the employee was a chef whose employer provided for him a room upon the premises where he was entitled to sleep. From Sunday night until Tuesday morning he was not required to work and was at liberty to go where and do as he pleased. On Monday as he was alseep upon the premises he died in the course of a fire. The court held that compensation was proper.

Let us advert once more to the evidence; the defendant in its answer alleges that at the time of plaintiff's injuries he was in its employ; the plaintiff's testimony warrants the conclusion that at all of the times with which we are concerned the relationship of employer and employee existed between him and the defendant, and the industrial accident commission, both by brief and oral argument, concedes that the relationship existed at the times with which we are concerned.

Applying the analogy of the foregoing cases and the principles which we have endeavored to deduce from them the conclusion comes irresistibly that although the plaintiff's work would not resume until Wednesday morning the employment began several months previously and continued during the trip from Silverton. Transportation to and from plaintiff's work upon these occasional trips was incidental to his employment; hence, the employment continued during the transportation in the same way as during the work. The injury, occurring during transportation, took place within the period of his employment, and at a place where he had a right to be, and while he was doing something incidental to his employment, because rendered necessary by the peculiar circumstances attendant upon logging operations.

But it is argued that this defense cannot be maintained because the employer, so the plaintiff says, made no remittances to the industrial accident fund for the time consumed by the plaintiff in traveling. This argument is not available to the plaintiff for several reasons. First, no testimony upon the subject was taken; hence the evidence is silent upon this subject. Second, the Industrial Accident Commission has signified, both by brief and oral argument, its entire willingness to pay the plaintiff the compensation provided by the act, hence we must assume that whatever remittances were payable have been discharged. And finally in the cases where the employee was going to or from his work upon his own time, in the noon hour lunch cases, the injury while sleeping cases, etc., compensation was not withheld. Compensaation is not denied when an injury occurs while such an incidental act is being performed even though remittance has not been made for the period of time involved.

Next it is argued that since the plaintiff's approach to his actual labors would be interrupted by a night at the camp he is not entitled to compensation out of the fund. The Industrial Accident Commission has construed the act otherwise, and such administrative rulings are entitled to serious consideration:Biggs v. McBride, 17 Or. 640 (21 P. 878, 5 L.R.A. 115); Kellyv. Multnomah Co., 18 Or. 356 (22 P. 1110); United States v.Johnson, 124 U.S. 236 (8 S. Ct. 446, 31 L. Ed. 389); Robertson v.Downing, 127 U.S. 607 (8 S. Ct. 1382, 32 L. Ed. 269); Emmons CoalCo. v. N. W. Ry., 272 U.S. 709 (47 S. Ct. 254, 71 L. Ed. 485). There is no contention that the plaintiff could have taken a later train and thus avoided a night in the camp. Possibly he could have tramped the county road and trail, and by properly timing himself could have arrived at the scene of his labors at the moment the whistle blew. Had he done so, we assume that no serious objection could have been found to an award of compensation. But the mere fact that the sun sets and arises again before actual labor begins we do not understand operates to defeat an award.

We shall now review briefly three cases which possess facts very similar to those now before us. In State ex rel. v.District Court, 141 Minn. 61 (169 N.W. 274), one Arnold Von Hagen resided in Bismarck, N. Dakota, but plied his vocation as a grain buyer in Minnesota. At the week-end Von Hagen decided to return to Bismarck from Minnesota so that he might spend Sunday with his family. While endeavoring to cross a river he was drowned. It was there argued that his widow was not entitled to compensation "because it appears that he did not come to his death by reason of an accident arising out of and in the course of his employment; that at the time of the death he had been through with his work since the preceding day; that there was no necessity for his getting home on Sunday * * *." The court held that compensation should be allowed. We quote from the decision the following brief excerpt: "We see no reason why he might not properly, and without stepping outside the scope of his employment return to his home from his field of labor on the Sabbath day." In Stockley v. School District, 231 Mich. 523 (204 N.W. 715), a school-teacher while upon a journey to a neighboring town to attend a teacher's institute was killed when the automobile in which she was riding collided with a train. The deceased was not required to attend the institute; her refusal to go would not have constituted grounds for her discharge; but all teachers were urged by the school board to attend. It will be observed that attendance at the institute was an act incidental to her employment, and that the accident did not befall her while engaged in the sessions of the institute but while journeying to the town where the institute would convene. The court in holding that compensation was due expressed itself, among other matters, thus: "Various exceptions to that general rule are found in cases where it is made to appear that the employee, although away from his regular place of employment, even before or after customary working hours, was doing some special service or discharging some duty incidental to the nature of his employment in the interest of or under direction of his employer." The last of the three cases which we have just mentioned is E. Clemens Horst v.Hartford Accident Indem. Co., supra. In that case the employer (plaintiff) desired to secure 2,000 hop pickers to begin work September 1, 1925, and who would live at the employer's camp; each would be required to deposit the sum of $1 for the use of his living quarters. August 5 W.P. Rogan and wife contracted to enter plaintiff's employ and begin picking hops September 1; it was agreed that the plaintiff would transport the Rogans without charge from the railway depot at Salem to the hop fields. August 29th the Rogans presented themselves at the depot and were met by the plaintiff's agent with a motor truck. Upon the journey they were thrown from the truck and sustained injuries. The plaintiff carried with the defendant a policy of insurance indemnifying the former "against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries suffered * * * by any employee * * * while at or about the work of the assured described in warranty 4, which for the purpose of this insurance shall include all operations necessary, incident, or appurtenant thereto * * * whether such operations are conducted at the work-place defined and described in the warranties, or elsewhere." Warranty 4 follows: "Hop-picking — including all work incidental thereto." One of the principal contentions the defendant advanced to escape liability upon its policy was that the Rogans were not employees of the plaintiff at the time of their injury. This argument was disposed of:

"We are of the opinion that no unwarranted meaning is given to the word ``employee,' as it is used in the policy, if it is held to include all persons who shall have entered into a contract of employment with the plaintiff, and in pursuance of that contract rendered themselves to the plaintiff at an appointed rendezvous, to be carried by it to the hopyards, where the work was to be performed, although in the instant case that was done two days prior to the actual commencement of the work; for in the contract pains were taken to state broadly the risks that were intended to be insured against, and to provide that protection should extend to all operations necessary or appurtenant to hop picking, ``including all work incidental thereto.' Clearly, the transportation of the Rogans to their working place was an operation necessary and incidental to the work which they had contracted to perform, and was distinct and separate from the work of hop picking.

"The fact that hop picking was not to begin until two days later does not, we think, affect the question of the defendant's liability. Said the court in Cudahy Packing Co. v. Parramore,263 U.S. 418, 426 (44 S. Ct. 153, 155; 68 L. Ed. 366, 30 A.L.R. 532): ``We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was, therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises, as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.'"

The court held that the defendant was liable upon its policy because the Rogans were at that time employees. The recent Washington case of Wabnec v. Clemons Logging Co., 146 Wash. 469 (263 P. 592), is clearly in point and constitutes an authority in favor of the defendant's contentions. Norwood v. Tellico RiverLmbr. Co., 146 Tenn. 682 (244 S.W. 490, 24 A.L.R. 1227), which is relied upon by the defendant is opposed to the current trend of reasoning upon this subject; it has not met with favor: 13 St. Louis Law Review, 77.

We have not mentioned case by case all of the authorities relied upon by the minority opinion, nor those cited in the very able brief of the plaintiff, which displays both skill and industry, but our conclusions in regard to the governing principles of the law, which we have endeavored to carefully set forth, sufficiently disposes of most of those cases. We shall, however, mention Wells v. Clark Wilson Lmbr. Co., supra, andBrady v. Oregon Lmbr. Co., 117 Or. 188 (243 P. 96, 45 A.L.R. 812), because they are typical of many of the cases the plaintiff especially calls to our attention. In the first first of these two cases the evidence failed to show that the plaintiff was in the defendant's employ; she was upon its premises seeking employment, but had not yet been accepted into its employ. In the latter of the two cases the relationship of employer and employee, which at one time had existed, had been fully terminated before the injury befell the plaintiff. It is evident that such cases are not similar to the facts before us.

It follows that our previous decision was in error and that the judgment of the circuit court should be reversed.

BELT, J., McBRIDE and RAND, JJ., concur.