Zeier v. Boise Transfer Co.

John N. Zeier, employed by the Boise Transfer Company, while riding a bicycle along Grove Street, Boise, was struck by an automobile and received injuries from which he died two days thereafter. On application of Beulah A. Zeier, wife of deceased, the Industrial Accident Board, after a hearing, awarded her and her minor child compensation. On appeal to the district court the findings, conclusions and award of the board were sustained, whereupon this appeal was taken.

Appellants contend that the injury which caused Zeier's death did not arise out of and in the course of his employment because: first, the risk was common to all the public, and, second, that Zeier was returning from lunch when injured, and hence was not entitled to compensation.

It was the custom of the employees of the Transfer Company to take turns from week to week remaining on duty between the hours of 12 and 1 o'clock subject to call by the Transfer Company, and on the day of and during the week of the accident, Zeier was on duty and employed between those hours and a few minutes after 12 was specifically instructed by McBride, under whose direction and control he was working, to go to the freight depot and get and deliver a bill of lading and then as soon as possible unload a truck which was blocking the company's scales. Zeier left the office of the Transfer Company and some fifteen minutes after 12 arrived at his home and secured a quick lunch and shortly before 1 o'clock, while riding in the direction of the Transfer Company's place of business, the accident occurred.

Where the employment requires the employee to be on the street he is subjected to a different risk than the ordinary traveler and so if he is injured while engaged in that duty or something incidental to it the accident arises out of the employment. This doctrine is well stated in Reugg's Workmen's Compensation, 9th ed., page 91, quoting from Dennis v. White, 10 B. W. C. C. 280:

"If a servant in the course of his master's business has to pass along the public street, whether it be on foot or on a bicycle, or on an omnibus or car, and he sustains accident by reason of the risks incidental to the streets, the accident arises out of as well as in the course of his employment."

"Injury to employee struck by an automobile, while on an errand for his master, was a direct and absolute result of risk reasonably incident to employment and was an accident 'arising out of employment,' within the Workmen's Compensation Act." (Palmer v. Main, 209 Ky. 226, 272 S.W. 736.)

A mechanic subject to call at any time went out to fix a battery and on his way back stopped for lunch and after lunch while on his way to the employer's shop was injured while in the course of his employment. (ConsolidatedUnderwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128.) Other cases in line with such holding are: Mahowald v.Thompson-Starrett Co., 134 Minn. 113, 159 N.W. 565; Miller v.Taylor, 173 A.D. 865, 159 N.Y. Supp. 999; Putnam v.Murray, 174 A.D. 720, 160 N.Y. Supp. 811; Kunze v. DetroitShade Tree Co., 192 Mich. 435, 158 N.W. 851, L.R.A. 1917A, 252.

"Where exposure to ordinary street risks is inherent in the nature of the employment or where the particular work being performed compels the employee to face such hazard in the course of his contract of employment, and they thus become connected with and incidental to the employment and are the direct cause of an accident, the accident arises out of, as well as in the course of, the employment, within the Workmen's Compensation Act." (Cook's Case, 243 Mass. 572, 29 A.L.R. 114, 137 N.E. 733; Keaney's Case, 132 Mass. 532, 122 N.E. 739;Employers' Indemnity Corp. v. Kirkpatrick (Tex.Civ.App.),214 S.W. 956; Beaudrey v. Watkins, 191 Mich. 445, 158 N.W. 16, L.R.A. 1916F, 576.)

The evidence was sufficient to warrant the commission in concluding that the accident arose out of and in the course of Zeier's employment. (In re McNicol, 215 Mass. 497,102 N.E. 697, L.R.A. 1916A, 306; Nuzik v. Erie R. Co., 85 N.J.L. 129,89 A. 248; De Fazio v. Goldschmidt Detinning Co. (N.J.),88 A. 705; Kingsley v. Donovan, 169 A.D. 828, 155 N.Y. Supp. 801; Hendricks v. Seeman Bros., 170 A.D. 133,155 N.Y. Supp. 638; Granite Sand Gravel Co. v. Willoughby,70 Ind. App. 112, 123 N.E. 194.)

"It is essential to the right to compensation that the injury shall have been received in the course of the workmen's employment; that it shall have been received while he was doing some act reasonably incidental to his work. An accident or injury is so received while it occurs while he is doing what a man in like employment may reasonably do within the time during which he is so employed, and at a place where he may reasonably be during that time.

" 'Course of employment' includes acts in which the employer has acquiesced, though they are not done in a strict performance of the employee's duties. An employee is not, like a part of a machine operated by him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment." (1 Honnold on Workmen's Compensation, p. 346, par. 105.)

In Burton Auto Transfer Co. v. Industrial Acc. Com., 37 Cal. App. 657,174 P. 72, it was held that a transfer truck driver, whose hours were uncertain and who had no regular lunch hours, who had instructions to get his truck and go to the depot and was struck by an automobile while crossing the street to get his truck and killed, received an injury arising out of and in the course of his employment. In the opinion the court says:

"The petitioner relies upon the many cases to the effect that one is not entitled to compensation under the Workmen's Compensation Act, if he is injured while on the way toward or from his employment. These cases are not in point for the reason that, at the time he was stricken, Fickett was not on the way to his employment. He had never left it. Under the facts above stated he was within the hours of employment." (Porter v. Industrial Co., 301 Ill. 76, 133 N.E. 652; Harivalv. Hall-Thompson Co., 98 Conn. 753, 120 A. 603.)

The judgment is ordered affirmed. Costs awarded to respondent.

Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.