Salt Lake City v. Industrial Commission

On September 17, 1941, Edren Erickson filed a claim with the Industrial Commission in which he alleged that he was injured on August 26, 1941, while employed as a truck helper by Salt Lake City Department of Streets and Public Improvement. He further alleged that the injury arose out of or in the course of this employment. The Commission made an award to Erickson and Salt Lake City appealed.

The employment by the city and the injury while at the place of his employment are admitted by the city. The only question raised by the appeal is: Did the injury arise out of or in the course of the employment? There is considerable conflict in the evidence relating to this issue.

Erickson testified that while he was working at the city garbage dump, L.T. Landram, a fellow employee and Erickson's immediate supervisor, remarked that he would like to have some of a load of screens that were being unloaded on the dump. Landren stated that he wanted the screens for his own personal use. Erickson asked "Shall I get some for you?" and Landren replied, "Yes." The applicant testified that he proceeded to the place where the screens had been dumped, picked up an armful and started to return to the truck on which he worked. At that time, Ames the assistant foreman in charge of the dump, objected to the taking of the screens. The applicant testified that Ames called him some disreputable name and a scuffle ensued. During the scuffle the applicant suffered a broken leg. According to the testimony of the applicant the altercation arose because of a dispute over the ownership of the screens. He testified that Ames stated "Those are mine."

On the other hand, Ames denied that he had any personal interest in the screens. He stated that rules had been posted and all employees, including the applicant, had been informed orally that they were not to take any salvage from the dump without the permission of the foreman or assistant foreman. Ames maintained that his only interest was the enforcement of this rule. Dyer, the general foreman, corroborated the testimony of Ames in regard to the fact that there were such established rules.

The applicant testified that he did not know of any rules which prohibited the taking of materials from the dump. He also testified that the foreman, Dyer, had given him permission to salvage any materials which were not taken by the salvage crew. It should, however, be noted at this point that the applicant was informed by the general foreman that he could take materials only after the salvage crew, which worked a night shift, had a chance to take what they wanted. He knew that these screens had just been brought to the dump and that the salvage crew had had no opportunity to take them.

The Commission found that Ames was the aggressor and that the altercation ensued when Ames, in his capacity of assistant foreman, attempted to enforce the rule. The Commission also made the following finding:

"The testimony of Ernest F. Ames [assistant foreman] and particularly that of Gus Dyer, foreman in charge of the city dump, is to the effect that rules had been posted and all employees had been informed by word of mouth that they were not to take any salvage from the dump without permission from the foreman or assistant foreman. Mr. Ames further testified that he had no interest in the screens and did not claim they belonged to him, but merely tried to enforce the rules regarding the taking of salvage. * * * We are incline to believe the testimony of Mr. Dyer the foreman and Mr. Ames the assistant foreman with respect to the established rules and testimony of Mr. Ames that he was attempting to enforce one of the rules at the time the scuffle ensued. * * * It is quite apparent that Ames approached Erickson with the intent to force him to drop the screens."

This quoted so-called finding is more a narration of testimony than a finding but we must assume that when the Commission set out certain testimony it intended to find the fact in accordance with such testimony. But in the face of this assumption the finding is open to only two interpretations, under 1, 2 either of which the case must be reversed. First, it may be construed as a finding that Erickson had knowledge of the rule and was acting in willful violation of it. A finding that rules had been posted and that "all employees had been informed by word of mouth" appears to include a finding that Erickson had been so informed. The applicant contends that it makes no difference whether or not he knew he was violating the rule. In support of this contention he first relies on the fact that he violated the rule while complying with the request of his immediate superior. However, it appears that he knew that his immediate superior, Landram, wanted the screens for his own personal use and that it would in no way benefit the employer, the city. If we assume that he knew of the rule, he would be charged with notice that it was outside the scope of Landram's authority as supervisor to request him to violate it. Under these circumstances he is in no better position for having acted at Landram's request than he would have been had he acted entirely on his own behalf. See Ballman v. D'Arcy Spring Co.,221 Mich. 582, 192 N.W. 596; Pearce v. Industrial Comm., 299 Ill. 161,132 N.E. 440, 18 A.L.R. 523, both of which involved injuries while the applicant was on an errand for his supervisor.

The applicant also relies on the holding in regard to rule breaking announced by this court in Twin Peaks Canning Co. v.Industrial Comm., 57 Utah 589, 196 P. 853, 20 A.L.R. 872. This court did state in that opinion that the breaking of the rule in that case went only to the question of 3 negligence, and, since negligence is no bar in compensation cases, allowed recovery. It is true that the breaking of a rule under certain circumstances might relate only to the question of negligence or willful misconduct. See A.L.Randall Co. v. Industrial Comm., 305 Ill. 558, 137 N.E. 435 (employee instructed to take materials to another floor but ordered to wait for the elevator operator was injured while operating elevator himself); Nordyke Marmon Co. v. Swift,71 Ind. App. 176, 123 N.E. 449 (employee instructed to use dirty gasoline to wash floors was injured while trying to get clean gasoline); Blocton, Cahaba Coal Co. v. Campbell, 219 Ala. 529,122 So. 806.

However, the breaking of a rule might also go to the question of whether or not the employee by his conduct 4 departed from the course of his employment. As stated in Erdberg v. United Textile Print Works, 216 A.D. 574,216 N.Y.S. 275, 276:

"The disobedience of an order may do no more than to establish a fault on the part of an injured employee. In that case the employee would not lose his right to compensation. The order, however, may go further. It may so restrict the activities of the employee that its violation would place him outside the sphere of his employment [if he is injured], in which case compensation would not be payable. * * * [The employee] is beyond the sphere of his employment if he is injured in the course of doing the thing forbidden." See also Ballman v. D'Arcy Spring Co., supra.

There are a number of cases which deny recovery even where the employee who violates the rule is attempting to perform a service for the benefit of his employer at the time of the injury.Kubes v. Hillman Coal Coke Co., 96 Pa. Super. 340,Kitchen v. Hartranft, 130 Pa. Super. 459, 198 A. 479; 5Enfield v. Certain-Teed Products Co., 211 Iowa 1004,233 N.W. 141; Hibberd v. Hughey, 110 Neb. 744, 194 N.W. 859;Fournier's Case, 120 Me. 236, 113 A. 270, 23 A.L.R. 1156. It is not, however, necessary to go so far in this case. If we construe the above-quoted finding as a finding that the applicant did have knowledge of the rule, then it would appear that he acted willfully in violation of it; that he violated it for reasons tantamount to being personal to himself; and that he engaged in an altercation while persisting in the violation of it. Under these circumstances there would have been a departure and the fact that the scuffle resulted over Ames' admonition that the applicant was to obey the rule would not make the altercation arise out of nor bring the applicant back into the course of his employment. Certainly if an employee during his tour of employment left his job and proceeded to use one of the company's machines for doing a substantial job of his own, I do not think we would say that he could recover if he were injured by the machine during such departure. A fortiori, if there were a distinct rule against employees using company machines during hours of their employment for their own purposes, we would not hold that compensation should be granted. How then could such an employee be said to be returned to his employment if he engages in an altercation with the foreman arising out of the admonishment by the latter during the time of and in reference to his departure for his own purposes? Hence if said finding is to be interpreted then the case must be reversed because of the misapplication of the law.

If, on the other hand, the applicant had no knowledge of the rule, there would not have been a departure prior to the fight and the award of the Commission could be affirmed. The Commission found that the scuffle had its genesis in the attempt of Ames to enforce the rule governing the employment 6 and therefore it was not entirely divorced from the employment. The fight occurred at the place of the employment and during the working hours. The applicant did not leave the premises. If he had no knowledge of the rule, he, under the holding of Twin Peaks Canning Co. v. Industrial Comm., supra, could have gone to get the screens even though he had gone there for reasons tantamount to being personal to himself. Ames was found to be the aggressor. If the applicant had not departed from his employment up to that time, he would not be held under such circumstances to have departed from his employment by engaging in the altercation. Hartford Accident Indemnity Co. v.Cardillo, 72 App. D.C. 52, 112 F.2d 11. However, we cannot assume that the applicant had no knowledge of the rule especially in the light of the strong inference that he had such knowledge which arises from the findings made.

As already indicated, the finding quoted above is subject to a second interpretation. That is, it may be construed as relating only to the question of the origin of the fight. If this interpretation is accepted, then there is no finding on the vital issue as to whether or not the applicant was acting in willful violation of the rule for there is no specific finding that he had the permission of foreman or assistant foreman to take the screens. Under such an interpretation the case must be reversed for we cannot assume that the Commission, if it had made a finding on this issue, would have resolved the conflict in favor of the applicant.

In this regard it is well to note that the case has two aspects — the first, involving the question as to whether the applicant departed from the employment prior to the time of the scuffle, and the second involving the question as to whether he departed by engaging in the scuffle. The record, when taken as a whole, indicates that the Commission did not consider the first aspect of the case, that is, whether the breaking of the rule by the applicant for reasons tantamount to being personal to himself itself constituted a departure. There would, therefore, be no logical or reasonable basis for assuming that the Commission would have found either one way or the other on the conflicting evidence relating to the applicant's knowledge of the rule, or, if he had knowledge of the rule, that its effect had been suspended by permission given to take the screens.

For the purpose of ascertaining who started the fight, we must assume that the Commission stated that it believed the testimony of Ames and Dyer in regards to imparting notice to all employees of the established rules. In the face of this finding it would be unreasonable for us to assume that the Commission would have disbelieved the testimony of Ames and Dyer to the effect that they had informed the applicant of the rule. And the findings are blind as to whether applicant, although he may have known the rules, disregarded them without permission.

The case of Jones v. Industrial Comm., 90 Utah 121,61 P.2d 10, 13, presented a somewhat similar problem. In that case the Commission made a finding which was open to two interpretations. Under it the court could not ascertain whether the Commission intended to find that the applicant suffered no accident arising out of or in the course of his employment or whether it found that if he did suffer such accident, his disability was not the result of such accident. We stated:

"We are in a dilemma in attempting to determine which of the two probabilities was the basis for denying plaintiff an award. If the injury which he sustained on June 4, 1932, was not sustained in the course of his employment and such finding may be said to be justified under the evidence, then the order denying compensation should be affirmed; otherwise, as heretofore indicated in this opinion, if he received the injury complained of while in the course of his employment, he is entitled to compensation for money he was compelled to spend for medical and hospital treatment occasioned by the injury, even though it be found that his present disability was not caused or contributed to by the accidental injury."

We reversed the order of the Commission which denied compensation to the plaintiff stating that we could not dispose of the case on its merits until the finding involved had been clarified.

The situation regarding a missing finding in this case is also similar to the situation thought by the writer of this opinion to be involved in the case of Building Service Employees v. NewHouse Realty, 97 Utah 562, 95 P.2d 507, and the discussion of which can be found in the dissenting opinion in that case.

However, the writer does not wish to approve the language of the Jones case in so far as it indicated that this court could not in any case supply a missing finding in an industrial compensation case when the findings made by the Industrial Commission are incomplete and the evidence 7, 8 is in conflict. The comparison in the Jones case of an appeal from an Industrial Commission award or order, on the one hand, with an appeal from the judgment of a lower court, on the other hand, is hardly apt. The Commission is not required in any case to make written findings although it is desirable that it do so. Denver R.G.W.R. v. Industrial Comm., 66 Utah 494,243 P. 800; Moray v. Industrial Comm., 58 Utah 404, 199 P. 1023;Jones v. Industrial Comm., supra. If no findings were made we could supply them all. In some cases the findings of the Commission fit into place like the pieces of a jig-saw puzzle forming a pattern which gives a more or less complete picture of those matters considered and the conflicts resolved by the Commission even though certain findings are omitted. The mosaic thus formed is such that it clearly indicates which way the Commission would have held on the conflicting evidence had it not neglected to make a finding. Under these circumstances there seems to be no logical reason why the court, which could supply all the findings if none were made, could not supply the missing finding. But such is not the case here.

For the reasons stated above, the award of the Commission must be and is hereby reversed.

McDONOUGH, J., and WM. L. HOYT, District Judge, concur.