This is an action for damages for personal injuries sustained by plaintiff while a passenger on a conveyance known as a gasoline speeder operated by the defendant corporation.
The plaintiff alleges, among other things, that, on October 31, 1926, while he was being transported by defendant over its railroad by means of the speeder above referred to, the speeder ran off the track, throwing plaintiff from his seat onto the ground, "thereby fracturing plaintiff's left arm, fracturing plaintiff's skull on the left side, injuring the great toe of plaintiff's left foot so that it was necessary to amputate the toe at the first joint, and mashing and bruising plaintiff's left foot and ankle, tearing loose the ligaments thereof and injuring plaintiff's foot, and also fracturing three ribs, and loosening two of plaintiff's teeth, causing plaintiff to lose time from his work * * * and to suffer great physical pain and mental anguish." He further alleges that the defendant was wilfully and grossly negligent and careless in the operation of the speeder, and in failing to provide guards and protections to prevent persons riding on the speeder from being thrown therefrom. *Page 543
The defendant by its answer denies that it was negligent. For an affirmative defense it alleges that the injuries suffered by plaintiff, if any, resulted from his own carelessness and negligence; that both plaintiff and defendant had elected to be bound by the Oregon Workmen's Compensation Act, "and plaintiff, being an employee of the defendant at the time of the injuries complained of, was entitled to receive pay for his injuries from said fund, and not from the defendant."
The plaintiff, replying, denies that he was under the protection of the Oregon Workmen's Compensation Act, or that he was guilty of contributory negligence.
When the evidence had all been received the defendant moved the court for an order directing a verdict for the defendant on the ground that the evidence submitted was insufficient to take the case to the jury; that the evidence failed to show any negligence on the part of the defendant sufficient to take the case to the jury, and that at the time of the accident both the plaintiff and defendant were subject to the Oregon Workmen's Compensation Act. The court denied the motion. Plaintiff had judgment, and defendant appealed. In point of fact this case is practically on all fours with the case of Lamm v. Silver Falls Timber Co. decided this day, and a decision of the one would control the other. As stated by counsel for defendant herein, the chief question to be determined is whether or not the plaintiff was in the employ of defendant at the time he sustained his injury. Plaintiff says he was not employed by the defendant at that time. The defendant says he was so employed. *Page 544
Or. L., § 6616, as amended by chapter 133, General Laws of Oregon, 1925, relating to industrial accidents and compensation therefor by the state, reads:
"Every workman subject to this act while employed by an employer subject to this act who while so employed sustains personal injury by accident arising out of and in the course ofhis employment and resulting in his disability * * *, shall be entitled to receive from the Industrial Accident Fund * * * the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury * * *."
Plaintiff's testimony indicates that he was 38 years old at the time of the trial, and, for four or five years prior thereto, had been a logger, receiving a wage of $5.40 to $7 per day; that he had worked for the Flora Logging company at their camp off and on for four or five months next preceding the time of the accident, during which time he boarded at the camp cookhouse, paying about 45 cents a meal for his board, and slept in one of the bunk houses, for which he was charged a dollar a week; that during these months he quit working and left the camp "seven, eight, or ten times" for a few days at a time because, he said, "I would get tired of working and come in to rest up for a few days." He testified that, during the time he was not working, or after he finished work at night, no person had any supervision over him, or anything to say as to what he did with his time. His version of the accident, and what took place at that time, is as follows:
About 8 o'clock on Saturday morning, October 30, 1926, he left camp and bought a ticket for Carlton, and from there went on to Portland "to get some shoes and *Page 545 clothes." On being asked if he performed any errand or service for the company at any time after he left the camp, he testified:
"Absolutely not. I just delivered a message the camp foreman wanted me to deliver, to tell a man that he wanted him to come out to camp."
He came back to Carlton Sunday evening on one of the Portland stages, and there bought a ticket from Carlton back to camp. They started for the camp on one of the big speeders. When they were within eight or ten miles of camp the speeder broke down, and, after some little waiting, the passengers were transferred to a little speeder to complete the trip. They again started on their way, traveling between 30 and 35 miles an hour, and when they attempted to round a curve the speeder "got to lurching on the curve there back and forth * * * and the crowd got to lurching too and crowded me off, and it ran over me."
Mrs. E.L. Grewell, called on behalf of the defendant, testified that she was a passenger on the speeder at the time of the accident, and that, in her judgment, the plaintiff was "quite badly intoxicated" when the accident occurred; that she heard a good deal of boisterous talking, and smelled liquor in the car. When asked how she knew plaintiff had been drinking she answered:
"You usually can tell when a person is under the influence of liquor by his breath.
Q. So you smelled his breath? A. Yes."
She testified that the plaintiff and two others who were more or less intoxicated boarded the speeder together, and as to their subsequent conduct she made the following statement:
"They opened a can of dill pickles and oysters and held their hands over the top of it and poured the juice *Page 546 all over the floor, on the seats, or wherever it happened to go. It didn't seem like men would do that unless they were slightly intoxicated."
An injury arises in the course of the employment within the meaning of the Workmen's Compensation Law "when it occurs within the period of the employment at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it." 2 Words Phrases (Third Series), p. 594.
See, also, Granite Sand Gravel Co. v. Willoughby,70 Ind. App. 112 (123 N.E. 194); N.K. Fairbank Co. v. IndustrialCommission of Illinois, 285 Ill. 11 (120 N.E. 457); EugeneDietzen Co. v. Industrial Board of Illinois, 279 Ill. 11 (Ann. Cas. 1918B, 764, 116 N.E. 684); Jeffries v. Pitman-Moore Co.,83 Ind. App. 159 (147 N.E. 919); Bryant v. Fissell,84 N.J. Law 72 (86 A. 458); Walther v. American Paper Co. (N.J.)98 A. 264; Chicago, Wilmington Franklin Coal Co. v. IndustrialCommission, 303 Ill. 540 (135 N.E. 784); New Amsterdam CasualtyCo. v. Sumrell, 30 Ga. App. 682 (118 S.E. 786).
The case of Reed v. Bliss Van Auken Lumber Co., 225 Mich. 164 (196 N.W. 420), is similar to the case under consideration; and, in review of that case, the Michigan court says:
"In the instant case deceased had finished his work for the week and had drawn his pay. He owed no duty to his employer until the following Monday. He was free to go where he pleased and as he pleased; he left the employer's premises by means entirely of his own choosing (automobile of a fellow employee), over which the employer had no control. Arriving in the street he was killed by an engine, an instrumentality over which the employer likewise had no control. Under these circumstances, *Page 547 I think it should be said as matter of law that the accident did not arise out of decedent's employment and that it was not in the course thereof."
A case squarely in point with the case at bar is Norwood v.Tellico River Lumber Co., 146 Tenn. 682 (244 S.W. 490, 24 A.L.R. 1227); and the following from Point 1, Syl., of the opinion rendered therein indicates the holding of the court:
"Where employer, as a part of the contract of employment, permitted employees going to and from their work to ride free on logging trains running between a town and employer's logging camp, and an employee, who left his home at the camp Saturday afternoon, after working hours, for purpose of visiting his father in town, was injured by the lurching of the train while returning to camp Sunday afternoon, his injury did not arise `out of and in the course of employment,' within the Workmen's Compensation Act, the trip being personal, and therefore the statute could not be invoked to defeat recovery in a common-law action."
See Simons v. Oregon R.R. Co., 41 Or. 151 (69 P. 440, 1022);Putnam v. Pacific Monthly Co., 68 Or. 36 (130 P. 986, 136 P. 835, 45 L.R.A. (N.S.) 338, L.R.A. 1915F, 782, Ann. Cas., 1915C, 256).
The record in this case plainly shows that the plaintiff was not engaged in furthering the interests of his employer at the time he received his accidental injuries, but that these injuries were received on an occasion when time was his own. He had gone to Portland on personal business. The fact that he rendered a favor to his employer by conveying a message to some workman in Portland while there did not constitute him an employee of defendant. He was receiving no pay from the defendant on the day he was injured. His trip from the camp to Portland was made on his own time and for his own personal reasons. According to the testimony *Page 548 of the defendant, plaintiff's injury was sustained through his own carelessness while under the influence of some intoxicating beverage. Clearly he was not in the service of his employer at the time he fell from the speeder.
As to the contention that plaintiff was guilty of contributory negligence, that question was submitted to and determined by the jury.
The defendant asserts that the provisions of the compensatory act should receive a liberal construction. In answer we invite attention to the familiar canon of statutory construction that, where an enactment is neither ambiguous nor obscure, the plain, natural, usual import of the words and phrases embodied therein present the surest and safest mode of ascertaining legislative will. Moreover, the legislature is presumed always to have used words in their known and ordinary signification unless that sense is repelled by the context. See 1 Fed. Stats. Ann., pp. 42, 43.
The decision of the trial court in this case is fair and just. This court has no right, by construction or implication, to stretch, enlarge, or torture the meaning of the words and phrases embodied in the Oregon Workmen's Compensation Law. If this statute shall be enlarged so as take into its protective embrace those persons who are not employed at the time of sustaining injury, it must be done by legslation, and not by the judiciary.
We have carefully considered all of the alleged errors and discover no valid reason for reversing this case. Hence we direct its affirmance.
COSHOW, C.J., and BEAN and BELT, JJ., concur. *Page 549
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