Hama Hama Log. Co. v. Dept. of Labor Indus. , 157 Wash. 96 ( 1930 )

Section 7679, Rem. Comp. Stat., as amended by § 4, ch. 310, Laws of 1927, p. 834, reads in part as follows:

"Each workman who shall be injured in the course of hisemployment . . . shall receive out of the accident fund compensation in accordance with the following schedule, . . ."

I italicize the words to be particularly noticed. It seems plain to me that Spears was injured while an employee of the logging company. True, his wages were so much per day and he was paid only for the time he actually worked, but he was regularly employed for an indefinite period, and manifestly he did not leave the camp on the day he was injured with any thought on the part of himself or the logging company, his employer, that his employment was then terminated.

It seems equally plain to me that Spears was injured while on the premises of the logging company, his employer, in the sense that he was then at its plant, its railway being a part of its plant. This rather strongly suggests that Spears would more readily be considered as injured in the course of his employment than as if he had been injured away from the plant of his employer. Suppose Spears had lived at Eldon and had been, in compliance with his employment contract, transported daily to and from his work in the woods over his employer's railway, there being no other way of reaching his work. It could hardly be seriously argued in such case that such transportation would not have been incident to his employment. It is true that Spears was leaving the camp on a mission of his own, but it was manifestly contemplated by his employment contract that he was privileged to do this and would frequently exercise that privilege, and that his employer would furnish him transportation to and from the limits of its plant over the only available way between his work and such limits.

Under the circumstances here appearing, I think that Spears, with reference to his leaving and returning to his work by the transportation furnished by his employer, was in the same situation as if he had lived at Eldon and had been daily so transported to and from his work. It was, by his employment contract, plainly contemplated by himself and his employer that he would frequently leave and return to the camp in the manner he was doing on the Sunday he was injured, just as it would have been contemplated that he would daily go to and from his work by the same means had he lived at Eldon.

Our decision in Wabnec v. Clemons Logging Co., 146 Wash. 469,263 P. 592, I think, comes near being decisive as against the order of the department and in support of the judgment of the trial court in this case. There Wabnec was employed by the logging company and placed by it upon its logging train to go to his place of work at its camp in the woods, it not being contemplated that he would actually commence work until he arrived at the camp in the woods. During the trip a collision occurred, resulting in Wabnec being injured. He sued the company, seeking recovery of damages from it instead of making claim against the workmen's compensation accident fund. In denying his claim of recovery against the logging company, we said:

"The appellant in this case was injured while in the course of his employment and incidental thereto, for it was necessary for him to be riding on the respondent's train on his way to work, and it is often held under similar circumstances, where the employer has furnished the means of transportation to the place of work and either before or after the work has actually commenced the employee is injured, that that injury arises out of and in the course of his employment . .. The right which the appellant had to be on the train arose out of the fact that he was an employee, his injuries occurred while on the premises of his employer, and under such circumstances the workmen's compensation act must apply."

It is true that the injury there in question occurred prior to the enactment of the 1927 amendment, but the question was as here, was the employee injured "in the course of his employment?"

In Swanson v. Latham, 92 Conn. 87, 101 A. 492, there was drawn in question the right to compensation of a workman injured while being carried to his work by transportation furnished by his employer, off the premises and plant of his employer; thus lacking one element which is in this case, that is, Spears being injured on the plant of his employer. Justice Wheeler, speaking for the court, said:

"The contract of employment between the decedent and the defendants required the decedent to work outside of the place of his residence, Willimantic, if his employer should so desire. And the defendants agreed that while the decedent was at work in Stafford Springs they, as a part of his contract of employment, would convey the decedent from his home to his work and back to his home each day in an automobile provided by them. The work began when the decedent reached Stafford Springs; the employment began when the decedent boarded the automobile at Willimantic, and continued during the trip and during the work and on the return trip to Willimantic. Transportation to and from his work was incidental to his employment, hence the employment continued during the transportation in the same way as during the work. The injury occurring during the transportation, occurred within the period of his employment, and at a place where the decedent had a right to be, and while he was doing something incidental to his employment because contemplated by it. The case falls clearly within the construction we have heretofore placed upon the terms of the statute, `arising in the course of the employment.' Larkev. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308, 97 A. 320. An injury received by an employee while riding, pursuant to his contract of employment, to or from his work in a conveyance furnished by his employer, is one which arises in the course of and out of the employment. The injury arose in the course of the employment and while the decedent was being transported to his home, consequently the employment was the proximate cause of it. It, therefore, arose out of the employment."

In Cudahy Packing Co. v. Industrial Insurance Commission,60 Utah 161, 207 P. 148, 28 A.L.R. 1394, it was held that the death of an employee of a plant, so located that it could be reached only by passing over a railroad track, at a point one hundred feet distant from the plant, by being struck by an engine while he was crossing the track going to his work, arose in the course of his employment. This is a well considered decision, wherein the authorities are ably reviewed. It seems to go a little farther than is necessary for us to do in this case in order to sustain this judgment of the superior court, because there the employee was not on the plant of his employer, nor was he furnished transportation by his employer. The principal ground of the decision seems to be that the employee was going to the plant of his employer and to his work by the only practical way for him to go, though injured at a point off the plant. We find a similar situation and holding in Lumberman's Reciprocal Ass'n v.Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402, to which decision, as reported in the last cited volume, a valuable note is appended. See also the late decision of the Oregon supreme court in Lamm v. Silver FallsTimber Co., 286 Pac. (Ore.) 527.

These are the outstanding facts calling for affirmance of the judgment of the superior court reversing the order of the department rejecting the claim in question: (1) Spears was an employee of the logging company at the time he was injured; (2) Spears was injured while on the premises of the logging company; (3) Spears was injured while being transported by the logging company in accordance with his employment contract, incident to his employment, the same as if he had been living off and away from his employer's plant. I am of the opinion that the judgment of the superior court should be affirmed.