Chun Wong Chee v. Yee Wo Chan Co.

— 787 — OPINION OP THE COURT BY PETERS, C. X (Perry, X, dissenting.) This case arises out of a claim for compensation under the Workmen’s Compensation Act made by the defendant in error in respect of the death of her husband. The industrial accident board awarded compensation and plaintiffs in error appealed to the first circuit court. The circuit court, after trial had jury waived, awarded compensation. Following is the court’s decision omitting the award of the industrial accident board which the court quoted therein in full: “Chun Chee, deceased, on August 12, 1921, was, and for some time prior thereto had been, employed as clerk and collector for Yee Wo Chan Company, general merchants doing business in Honolulu. On the date mentioned, Chun Chee, while riding in an automobile on his way to collect an overdue account for his employers, Yee Wo Chan Company, was thrown or fell from the automobile into the street, near the corner of King and Nu-uanu streets, in Honolulu, receiving personal injuries from which he died the same day. The injuries thus received by him, as disclosed by the evidence adduced at the trial in this court, arose out of and in the course of his employment with Yee Wo Chan Company. “The widow of the deceased, Mrs. Chun Wong Chee, on behalf of herself and her two minor children, having filed notice of the injury and death of her husband and also her claim for compensation with the Industrial Accident Board of the City and County of Honolulu, pursuant to Act 221 of the Laws of 1915 as amended by Act 227 of the Laws of 1917, and the board having heard and considered the claim, on January 11, 1922, duly made and — 788 — entered tbe following finding of facts and order:” (bere follows in full tbe award of tbe industrial accident board) “From tbe order tbns made and entered by tbe board Yee. Wo Oban Company and tbe Employers’ Liability Assurance Company, Limited, of London, England, insurance carrier of Yee Wo Oban Company, appealed to tbis court; and trial by jury being waived tbe cause was beard by tbe court. “Upon tbe evidence adduced at tbe bearing in tbis cause I find tbe facts to be tbe same in all respects as found and set forth in tbe order made and entered by tbe Industrial Accident Board, a copy of wbicb is quoted above, and wbicb order is hereby adopted and confirmed in all respects and tbe same is made a part of tbis decision.” Judgment was entered accordingly. Plaintiffs in error assign tbe following errors of tbe trial court: “1. That the circuit court erred in finding and deciding that on August 12, 1921, Cbnn Cbee, while riding in an automobile on bis way to collect an overdue account for bis employer, Yee Wo Chan Company, was thrown or fell from tbe automobile into tbe street. “2. That tbe circuit court erred in finding and deciding that tbe injuries tbns received by him (Cbnn Cbee) as disclosed by tbe evidence adduced at tbe trial in said court, arose out of and in course of bis employment with Yee Wo Chan Company. “3. That the circuit court erred in finding that facts shown by tbe evidence adduced in said court were tbe same in all respects as found and set forth in tbe order made and entered by the’ Industrial Accident Board. “4. That tbe circuit court erred in adopting and confirming tbe said order. “5. That tbe circuit court erred in rendering and entering its judgment on tbe 19th day of April, 1922, in favor of tbe claimant and against Yee Wo Chan Company and Employers’ Liability Assurance Corporation, Limited, to recover compensation in a sum not to exceed $5,000.” — 789 — The third and fourth assignments of error need be considered only so far as they involve assignments of error 1 and 2. The conclusions of fact or rulings of law included in the award of the industrial accident board are not binding upon the circuit court on appeal and the decision of the circuit court must find support, if at all, in the evidence adduced before it. The court may, however, in “stating its reasons” for its decision required by the provisions of section 2380, R.. L. 1915, include by adoption or confirmation the conclusions of fact or rulings of law of the industrial accident board. So long as the circuit court, when rendering its decision jury waived, states its reasons therefor, it makes no difference whether those reasons are set forth independently of or by reference to and in confirmation of the award of the industrial accident board. Assignment 1. That the deceased immediately prior to the accident was “riding in an automobile on his way to collect an overdue account for. his employers Yee Wo Chan Company,” is amply sustained by the evidence. The deceased at the time of the accident was employed as a salesman and collector by Yee Wo Chan Company of Honolulu, his hours of employment being from 8 a. m. to 9 p. m. The accident happened at about 6 p. m. On the morning of the day of the accident he had been instructed by the manager of Yee Wo Chan Company to collect an overdue bill of a customer living in Manoa, to which he replied that he was then too busy but would do so after dinner. A few minutes before the accident the deceased, while on King street near Maunakea street, was invited by a friend, driving a, private automobile along King street toward Nuuanu street, to ride with him. The deceased accepted the invitation and after getting into the automobile informed his friend that he was on his way to Circle lane where the company’s automobile was being re — 790 — paired, from which place he was going, to Manoa to collect a bill. Circle lane runs northerly from Beretania street between Punchbowl and Alapai streets and is on a direct line from the point where the deceased got into the automobile to Manoa. The automobile with the deceased as a passenger continued along King street to Nuuanu. It was while the automobile was turning northerly into Nuuanu street that the accident happened. The finding that the deceased “was thrown or fell from the automobile” is not sustained by the evidence. This does not mean, however, that plaintiffs in error by reason thereof are entitled to a new trial. The court’s finding-may admit of the inference that the proximate cause of the injury was not the mishap that occurred while the deceased was alighting from the automobile but due to other causes over which the deceased had no control—in other words, that the deceased had not intended to leave the automobile but had intended to continue with it and was prevented from so doing by circumstances other than his voluntary act. The impression entertained by the trial court that the deceased was thrown or fell from the automobile may have influenced it in holding that the accident arose out of and in the course of his employment. However that may be, where, as here, the evidence is not conflicting, erroneous findings of fact by the trial court do not constitute reversible error. Upon that state of the case it is the duty of this court to disregard such findings and decide as a matter of law what the facts prove. Hedge v. Williams, 63 Pac. (Cal.) 721-723. See also Hendrie & Bolthoff Mfg. Co. v. Collins, 56 Pac. (Colo.) 815, 816, 817. The only reasonable deduction of which the evidence is capable is that the deceased, as the automobile was turning northerly into Nuuanu street at the intersection of King and Nuuanu streets, got up from the rear seat of — 791 — the automobile in which he had been riding, climbed over the right rear door onto the running-board and in attempting to alight therefrom missed his step and fell backward sustaining the injuries that .caused his death. In other words, the proximate cause of the injury was the mishap which occurred while leaving the automobile. This brings us to the question of whether the injuries which caused his death were as a matter of law received by the deceased by accident arising out of and in the course of his employment. Assignment 2. The Workmen’s Compensation Act provides compensation to workmen and their dependents in the event of personal injury to the former by accident arising out of and in the scope of their employment., (Act 221, S. L. 1915 as amended by Act 227, S. L. 1917.) Section 1 of the act provides ¡.“Employments covered. This act shall apply to any and all industrial employment, as hereinafter defined. If a workman receives personal injury by accident arising out of and in the course of such employment * # ⅞, his employer or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified.” No question is raised by the plaintiffs in error as to the status of the deceased at the time of the accident as an employe of Yee Wo Chan Company or that his employment was industrial. Nor can there be any question but that the injury was the result of accident and not the result either of the employe’s wilful intention to injure himself or of his intoxication, in either of which cases exemption is granted the employer, when claimed by the latter, under the provisions of section 3 of the act. To warrant compensation under the Workmen’s Compensation Act it must appear that the workman personally received injury (l)-by accident (2) arising out of and (3) in the course of his employment. All of these — 792 — essential elements-must coexist at tbe time of the accident. The absence of any one defeats compensation. This may be best expressed by a quotation from the opinion of the New Jersey supreme court in the case of Bryant v. Fissell, 86 Atl. 458, 459: “Even though the injury arose out of and in the course of the employment, if it be not an ‘accident’ within the purview of the act there can be no recovery. Even if there be an accident which occurred ‘in the course of’ the employment, if it did not arise ‘out of the employment,’ there can be no recovery; and even though there be an accident which arose ‘out of the employment,’ if it did not arise ‘in the course of the employment,’ there can be no recovery. Fitzgerald v. Clarke & Son (1908), 2 K. B. 796; Craske v. Wigan (1909), 2 K. B. 635.” For an accident to “arise out of employment” 'there must be reasonably apparent a casual connection between the conditions under which the work is required to be performed and the resulting injury; that is, the injury must reasonably appear to have had its origin in a risk connected with or reasonably incidental to the work and to have flowed from that source as a rational consequence thereof. “It” (the injury) “arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all of the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. * * ⅜ It need not have been foreseen or éxpected, but after the event it must .appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” In re Employers’ Liability Assur. Corp. 102 N. E. (Mass.) 697. “ * * ⅜ an accident arises ‘in the course of the employment’ if it occurs while the employe is doing what a man so employed may reasonably do within a time during — 793 — which he is employed, and at a place where he may reasonably be during that time.” Bryant v. Fissell, supra. As was said by Buckley, L. J., in Fitzgerald v. Clarke & Son, quoted in the Bryant case: “The words ‘out of’ point, I think, to the origin and cause of the accident; the words £in the course of,’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the. character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words ‘out of’ involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.” “A risk is incidental to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.” “An accident is an unlooked for and untoward event which is not expected or designed.”. The “course” of the employe’s employment refers not only to those acts which he is expressly or impliedly authorized to do by his contract of employment but also refers to those things that he is entitled to do by virtue of said contract. The test is not “scope” of employment but “course” of employment. The latter term is much broader than the former. “It seems to be generally held by the English courts that employment is not necessarily synchronous with contract of service, but that, in all those things that he is entitled to do by virtue of his contract he is for the purposes of the act employed to do, and they are therefore within his contract of employment.” Industrial Commission v. Aetna Life Ins. Co., 174 Pac. (Colo.) 589, 591. — 794 — The burden of proof rests upon the applicant to establish all the facts necessary to entitle him to compensation under the Workmen’s Compensation Act. Factors necessary to support the claim cannot be left to surmise, conjecture,. guess or speculation. Nor will proof of facts equally consistent with a right to compensation and with the absence of such right be sufficient. In re Savage, 222 Mass. 205, 110 N. E. 283; In re Sponatski, 108 N. E. (Mass.) 466; Plumb v. Cobden Flour Mills, L. R. (1914) App. Cas. 62; Morris v. Industrial Commission, 295 Ill. 49, 128 N. E. 727; Dulac v. Dumbarton Woolen Mills, 112 Atl. (Me.) 710-713; C. & A. R. R. Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629; Bryant v. Fissell, supra; Albaugh-Dover Co. v. Industrial Board, 278 Ill. 179, 115 N. E. 834, 835. • The terms of the act, however, should, not be so construed that its intent or the purposes it is designed to accomplish be unreasonably limited. The act should be liberally construed. As said in Zappala v. Industrial Ins. Com., 82 Wash. 314, 144 Pac. 54: “In construing the language of the act we must have in mind the evident purpose and intent of the act to provide compensation for workmen injured in hazardous undertakings reaching ‘every injury sustained by a workman engaged in any such industry; and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in Avhieh the injury was received’ (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466), and that the act should be liberally interpreted, to the end that the purpose of the legislature in suppressing the mischief and advancing the remedy be promoted even to the inclusion of cases within the reason although outside the letter of the statute, and that every hazardous industry within the purview of the act should bear the burden arising ont of in — 795 — juries to its employees regardless of the cause of the injury.” “Our courts are in agreement that these acts should be broadly and liberally construed, to the end that their beneficent intent and jpurpose may be reasonably accomplished.” Industrial Commission v. Aetna Life Ins. Co., supra. The deceased was employed to collect bills. To collect bills he must necessarily move about from place to place. When the debtor lived at a distance from the place of his employment he was accustomed to use the street-cars or hire an automobile. This was known to his employer and no objection thereto was made by it. Hence he was entitled to use an automobile. What he was entitled to use by virtue of his employment he was employed to use and the use of an automobile was within his contract of employment. Moreover, the risks attendant upon the use of private automobiles are no greater than those attendant upon the use of public automobiles. That the use of a private automobile was gratuitous is immaterial. The instrumentality and not the circumstances of its procurement controls. In the case of Industrial Commission v. Aetna Life Ins. Co., supra, the deceased workman was employed as a foreman of a contracting company; having completed his work as foreman in connection with the erection of a telephone exchange at Afton, Wyoming, he started for his next job, which was at Montpelier, Idaho; he intended to leave Afton by the regular stage running to Montpelier but for some reason missed the stage and was invited to ride to an adjoining town and there catch a train for Montpelier; the automobile was privately owned and operated by an acquaintance and he was invited to take the trip as a guest, no payment of compensation being expected. The employer resisted compensation upon the ground that it did not appear that the action arose out of — 796 — and in tbe course of tbe. employe’s employment. Tbe court said: “In tbe case at,bar it was an essential part of bis employment that tbe deceased should travel from tbe place where be bad installed one plant to tbe place where be was to install another. It is also clear that be adopted a reasonable and apparently tbe only facility for such travel under tbe circumstances, and as safe as any other that may have been available. No case is cited that adopts a different rule, and we know of none, as applied to workmen’s compensation statutes'.” In Beaudry v. Watkins, 158 N. W. (Mich.) 16, it appeared that tbe deceased workman was employed as a delivery boy and was furnished a bicycle with which to do bis work. While in tbe course of bis employment be caught on tbe right rear end of a motor-truck proceeding in tbe same direction; tbe truck making a sudden turn tbe boy was thrown to tbe pavement and run over by a truck immediately to tbe rear. Tbe Michigan statute provided: “After it is shown that tbe accident happened within tbe time during which be is employed, and at tbe place where be may reasonably be during that time, that is, within the period and tbe scope of tbe employment, tbe workman must also show that it was a risk incident to tbe employment; that it arose because of something be was doing in tbe course of bis employment, or because be was exposed by reason of tbe peculiar nature of bis employment to tbe particular hazard which caused tbe injury.” Tbe employer resisted tbe compensation upon tbe ground that tbe deceased did not receive personal injury arising out of and in tbe scope of bis employment —that as tbe accident happened due to tbe decedent taking bold of tbe truck there could be no liability. Tbe court sustained tbe action of tbe industrial accident board awarding compensation. In tbe Travelers’ Ins. Co. v. Spalding, 1 Cal. I. A. C. — 797 — 575, the injured employe (a traveling salesman) was invited by some friends' to take a ride in an automobile, to which he responded that if they would go to Pleasanton where he wished to sell some goods he would do so. His friends took him to Pleasanton where he looked up certain prospective customers. While in Pleasanton the automobile, while turning, went into a ditch and the employe was injured. The industrial accident board in awarding compensation said: “The principal question raised by this application is as to whether or not Mr. Barnett was acting in the course of his employment at the time of the injury, he being engaged in taking an automobile ride in the evening. The commision is of the opinion that, at the time of his accident, he was within the course of his employment. A traveling salesman does not have regular hours of work each day; he must see his customers when they can best be found, either in the day time or in the evening. Mr. Barnett was actually going to Pleasanton on the business of his employer at the time of his injury. The risk of accidents by the wrecking of trains, street cars, automobiles or other means of conveyance which traveling salesmen must use in carrying on their business is one clearly incidental to their employment.” Plaintiffs in error place considerable reliance upon State ex rel. Miller v. District Court, 164 N. W. (Minn.) 1012. The facts of that case as disclosed by the application for compensation are in substance these: Plaintiff, seventeen years old, was in the employ of - defendant as a messenger at $7 a week. In this work he was provided with carfare when the distance to carry the message was considerable but not when the distance was as short as the one from defendant’s place of business to the Shubert theatre, or five blocks. On the afternoon of the day he was injured the boy was sent by his employer to the Shu-bert theatre for tickets. While returning to his place of — 798 — employment he climbed upon an automobile truck which was proceeding in the same direction and while so riding he slipped on a roller upon the floor of the truck, became entangled in the gears thereof and was severely injured. The excuse given by the boy for riding on the truck was that he was unusually busy that day and used the truck in his haste to • return to the office to continue his duties. The court held that while no doubt the boy was injured in the course of his employment the injury did not arise out of his employment upon the theory that since the boy was provided with carfare when the messages were to go beyond a certain distance he was to walk on all other occasions and therefore when he sought other methods by which to accomplish his tasks he departed from the scope or ambit of his employment and while so doing was not protected by the compensation act: That case, however, is clearly distinguishable from the case at bar. The boy’s contract apparently contemplated that in covering distances over five blocks he be furnished with carfare, and that the street-cars under such circumstances were to be used exclusively by him. He was neither authorized nor to the knowledge of his employer accustomed to use automobile trucks. In the use of the truck new and additional risks were involved due to the' character of the instrumentality employed. In the instant case not alone was the deceased accustomed to use automobiles but their use was known to his employer and no objection was made thereto. That the use of the automobile was gratuitous instead of for hire did not increase the risk. The Miller case is no different in reason than that of DeGosta’s case, 135 N. E. (Mass.) 135, cited by plaintiffs in error. In that case the injured employe was in the service of the town of Rockland as a janitor at a public schoolhouse; his duties included supervision of the con — 799 — dition of tbe building and whatever was required for its proper up-keep; at the time of his injury the outside of the schoolhouse was being painted and the painters in connection with their work had erected a staging about fifteen feet above the ground connected therewith by a ladder; the janitor went upon the staging by way of the ladder to examine the painting;' when he decided to return to the ground he saw one of the painters standing near the foot of the ladder, apparently upon the bottom round, so the janitor proceeded to slide down a rope which was fastened to the staging; when about six feet from the ground his hands slipped and he fell fracturing a bone in his left heel. The court refused compensation upon the ground that the injury did not arise out of the janitor’s employment. But were ropes the usual and ordinary means of descending and were the janitor, with the knowledge and without the objection of those in authority, accustomed to use such means then the risks attendant to such use would be the ordinary and usual risks incident to the janitor’s employment and when injured the injury would arise “out of” the employment. The same may be said of the suppositional case presented by plaintiffs in error of a bank messenger desiring to go from the Bank of Hawaii to the bank of Bishop & Company traveling over the roofs of the intermediate buildings. Such means of travel are not the ordinary and usual ones employed in such service and the risks attending such a method are not the risks ordinarily incidental to traveling from one bank to the other. Injuries sustained while taking the air route would not arise out of the messenger’s employment. The claim that “skylarking” of the deceased was the proximate cause of the injury and that hence his injuries did not arise “out of” his employment has no foundation in fact. As heretofore stated the undisputed evidence is — 800 — that the injury occurred while the deceased was alighting from the automobile. That preparatory to so doing he climbed oyer the door instead of proceeding by the ordinary method is immaterial. He apparently gained the running-board in safety and the manner of his exit even if it could be characterized as “skylarking” was not a contributing cause of the injury. The claim is also made that the injuries did not arise “out of” the employment of the deceased due to the hazardous methods employed by him in leaving the automobile. The circumstance of climbing over the rear door has already been disposed of as immaterial. There remains the additional fact of his stepping from a car while in motion. The most that can be said of the act of the deceased in stepping from the automobile while it was in motion is that he was guilty of negligence. That such negligence was the proximate cause of the injury does not however bar his dependents of the right to compensation. Nor can it be said that due to his failure to require that the automobile be first brought to a standstill before alighting and in stepping therefrom while in motion he assumed a risk not contemplated by his contract of employment. It is a matter of common knowledge that passengers frequently board and leave automobiles while in motion. According to the undisputed evidence the automobile in turning at the intersection of King and Nuuanu streets was traveling at a moderate rate of speed. And the conclusion is inevitable that the risk of injury in leaving the automobile while in motion was a risk incidental to his employment and the resulting injury arose “out of” his employment. From what has been previously said it is obvious that the deceased at the time of injury was not, as claimed by plaintiffs in error, on his way to work but was in the — 801 — course of Ms employment. We deem further discussion of tMs point unnecessary. We therefore conclude that where one employed as a bill collector, while on his way afoot to collect a hill which his employer has instructed Mm to collect, accepts an invitation to ride the whole or a part of the way in a private automobile and in alighting therefrom accidentally receives injuries and it appears that theretofore with the knowledge and without the objection of Ms employer the employe had been accustomed to use, among other means, public automobiles to travel from place to place to collect bills due his employer such injuries arose out of and in the course of such employment. The use of an automobile naturally includes getting in and out of it. That one does so negligently may constitute contributory negligence. But contributory negligence is no defense to a claim for compensation. The evidence is not clear upon the point as to how far the driver of the automobile intended to carry his passenger but if he had carried the deceased the whole way to the house of the debtor and the deceased in getting out of or alighting- from the automobile, whether while exercising due dare or under circumstances convicting him of contributory negligence, had been injured, it could not be denied that the injuries received arose out of and in the course of the employment of the deceased. The fact that the deceased left the automobile at the corner of King and Nuuanu streets does not in our opinion alter the situation an iota. He was still on a direct line to Manoa. The street-cars which could carry Mm to Manoa were immediately available. That this means of travel was less convenient is immaterial. Within but a few minutes prior to his leaving the automobile he had announced to his friend his intention of going to Manoa to collect a bill due his employer. His act of leaving the automobile was not inconsistent — 802 — with s.ncb intention. On the contrary it was consistent therewith and in the absence of evidence to the contrary we must assume that he left the automobile with the intention of going to Manoa to collect this account due his employer. Where one undertakes an errand with the expressed intention of going to a certain place for a certain purpose the unexplained discontinuance en route of the initial means of transportation does not imply an abandonment of such intention where other customary means of continuance of the errand are immediately available although less convenient. The motive or intention once shown to exist will be presumed to continue until the contrary is shown. A. L. Oastle (Robertson & Gastle on the brief) for plaintiffs in error. I. M. Btairibach for defendant in error. The foregoing disposes of assignment of error number 5. The judgment of the circuit court is affirmed.