Summary
holding that injury incurred when employee returned to retrieve paycheck six days after employment had been terminated occurred in course of employment
Summary of this case from Herman v. Sherwood Industries, Inc.Opinion
No. 30085
Decided April 4, 1945.
Workmen's compensation — Injury while acting in course of employment — Employee returned to employer's premises to procure pay.
A workman who, being unable to procure his pay when he severed his employment, is injured when he returns to the premises of his employer for that purpose, is acting in the course of his employment under the workmen's compensation laws.
APPEAL from the Court of Appeals of Hamilton county.
On October 16, 1942, and for some years prior thereto, Robert Parrott, the plaintiff, was employed as a fireman by The Cincinnati Coffin Company of Cincinnati, his place of employment being located in the boiler room on the company's premises. On that day, the plaintiff gave notice to his employer that he would leave its employ on Friday, October 23. He terminated his employment on that date but his week's pay due him was not available at that time.
On October 26, 1942, he entered the employ of another employer. He did not return to the office of the coffin company for his pay on its payday, Tuesday, October 27, but did return on Thursday, October 29, 1942, and requested his pay check at the timekeeper's office. He was advised that the bookkeeper was then at lunch, that the check could not be delivered until her return which would be in about a half hour, and that he should wait until her return.
Thereupon, he proceeded to call upon a former fellow-employee to make a contribution to a flower fund for another former fellow-employee who had died. He then went to the boiler room located in the power house, the location of his recent employment, to procure some work clothes which had been sent to a laundry from his place of employment in keeping with the custom of some nine years, but which work clothes had not yet been returned to the boiler room on the day he left his employment.
In going to the boiler room where his work clothes were located, he proceeded across an overhead passageway over Carr street to the second floor of the power house, and then down a ladder to the boiler room where he picked up his laundered work clothes.
In returning from the boiler room to the timekeeper's office he could have returned either by way of the ladder which was the most direct route, or he could have gone out of the power house to Carr street and thence around the company's shop, on either Richmond or Gest streets, to the door of the timekeeper's office on Fillmore street. The plaintiff chose the former route. On the afternoon of October 29, 1942, after securing his work clothes, he attempted to return to the timekeeper's office by going up the same ladder by which he had entered the boiler room. When part way up, he fell off the ladder sustaining a fractured pelvic bone and hip.
Plaintiff filed a claim for compensation with the Industrial Commission, which application was denied upon the ground that his injuries were not sustained in the course of his employment. Upon rehearing, the Industrial Commission denied plaintiff's right to participate in the state insurance fund on the same ground.
Plaintiff perfected his appeal to the Common Pleas Court of Hamilton county, alleging in his petition facts as above stated, and claiming that he sustained his injuries while on his employer's premises as a result of the activities and environment of his employment. The commission filed an answer which admitted the facts substantially as above stated, and for a second defense alleged that on October 29, 1942, the plaintiff was not an employee of The Cincinnati Coffin Company. By consent of the parties, the case was tried to the court without the intervention of a jury. The court found the plaintiff was entitled to participate in the fund.
An appeal was taken by the Industrial Commission to the Court of Appeals, which court affirmed the judgment of the Common Pleas Court.
The case is now in this court for review upon the allowance of a motion to certify the record.
Messrs. Hoover, Beall Whitman, for appellee.
Mr. Thomas J. Herbert and Mr. Hugh S. Jenkins, attorneys general, Mr. Robert E. Hall and Mr. C.G.L. Yearick, for appellant.
The question to be determined is whether plaintiff, under the circumstances of this case, was within the course of his employment at the time he received his injuries.
This court has heretofore held that an injury occurs in the course of employment, if there is a causal connection between the injury and some condition, activity, environment or requirement of the employment. Industrial Commission v. Weigandt, 102 Ohio St. 1, 7, 130 N.E. 38; Industrial Commission v. Ahern, 119 Ohio St. 41, 162 N.E. 272, 59 A.L.R., 367; Malone v. Industrial Commission, 140 Ohio St. 292, 303, 43 N.E.2d 266; 42 Ohio Jurisprudence, 626, Section 50.
Of course, if an employee has no authority to be at the place where he is injured, or is there on no business connected with his employment, but solely for purposes of his own, his injury does not arise out of or in the course of his employment.
In the instant case, the relationship of plaintiff to his recent employer at the time of his injury had a two-fold aspect. He first went to the office of the coffin company to collect his wages. Learning that he would have a waiting period before he could procure his money, he went to the boiler room, where he had previously worked, to pick up some of his work clothes which were not available to him on the day he quit work. Having secured the clothing, he was returning to the pay office when he suffered his injury. The commission claims that plaintiff was on a mission of his own in pursuing the latter of these objectives, and that he was not in the course of employment by the coffin company, at least until he had again reached the pay office. On the other hand, plaintiff claims that he was rightfully on the premises of the coffin company primarily to procure his pay, and incidentally to pick up property belonging to him; that both objectives were incidents of his employment; and that his contract of employment was not terminated until these objectives were accomplished.
Clearly, he was not a trespasser in going to the boiler room for his clothing which he had worn while at work there. He had a right to pick up his own personal property which he was unable to take away with him when he quit work, and no complaint seems to have been made by the coffin company concerning his conduct in that regard. Acts of an employee done within a reasonable period of time after actual working hours in making the necessary preparations to terminate his employment, are incidents of and within the course of his employment within the meaning and operation of the workmen's compensation laws. See Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N.W. 665, L.R.A., 1916A, 22, annotations page 40; 42 Ohio Jurisprudence, 640, Section 57. See, also, the rule applied in the following cases:
Mitchell v. Consolidated Coal Co., 195 Iowa 415, 192 N.W. 145 (a miner who was quitting his job and was injured while going down a manway to get his tools, held, within the course of his employment); Molloy v. South Wales Anthracite Colliery Co. (1910), 4 Butterworths' Workmen's Compensation Cases (N.S.), 65 (workman, a few days after leaving his work, obtained leave to go down into a mine to bring up his tools and while there for that purpose was injured, held, injury arose out of employment).
However, as above stated, the primary motive of plaintiff in going to the plant of the coffin company was to secure his wages. He first called for his wages and if he had received them there would have been no occasion for him to retrace his steps on the ladder where he was injured in attempting to return to the pay office. On the other hand, he had procured his clothing and was definitely on his way back to the pay office when he was injured. The real question to be determined is whether he was in the course of his employment when on his way to the office for his wages.
On general principle of contract, it is the duty of the debtor, if he and his creditor are residents of the same community, to go to his creditor and pay him. 40 American Jurisprudence, 723, Section 17; House v. Lewis, 108 Neb. 257, 187 N.W. 784, 23 A. L. R., 877; Catlin v. Reed, 141 Okla. 14, 283 P. 549, 67 A. L. R., 1410. However, this rule has no application in modern industrial employments involving large numbers of employees. It is the well established custom, which becomes a part of the contract of employment, that the employee shall go to the pay office of the employer for his pay on or after regular payday fixed by the employer. The contract of employment, as to the matter of wages and their payment, is not fully terminated or satisfied until the workman's wages, already earned, are paid. It was not only the right but the duty of plaintiff to go to the coffin company plant and obtain his wages. He could not require the company to search him out and pay him elsewhere. He was a licensee and not a trespasser in going to the office for his wages.
By the great weight of authority, a workman, who, being unable to procure his pay when he severed his employment, is injured when he returns to the premises of his employer for that purpose, is acting in the course of his employment under the workmen's compensation laws. Where an employee, who was not working on the day on which he received his pay, was told by his employer that he would have to call for his pay, was injured by falling on an icy sidewalk on the premises of his employer while leaving the pay office with his pay, such injury arose in the course of his employment. Crane Co. v. Industrial Commission, 306 Ill. 56, 137 N.E. 437.
Where an employee of a logging company, in one of its camps, being about to take a vacation, was given a time slip and was told to go, as was customary, by one of the company's logging trains to its office in a village some miles away to get his pay, and while riding on such train was accidentally injured, it was held that he sustained such injury while in the employ of the logging company and while performing service growing out of and incidental to his employment. Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N.W. 921, L.R.A. 1918A, 277.
A mill hand whose employment had ended on Wednesday went to her employer's mill on Friday, which was payday, to receive her wages. She met with an accident while leaving the pay office. It was held that the injury was in the course of her employment. Riley v. W. Holland Sons, Ltd. (1911), 1 K. B., 1029, 104 L. T. Rep., 371, 4 Butterworths' Workmen's Compensation Cases (N.S.), 155.
The English rule is that where a workman remains on the premises or returns thereto to obtain his pay after work ceases, he is still acting in the course of his employment. Riley v. W. Holland Sons, Ltd., supra; Molloy v. South Wales Anthracite Colliery Co., supra.
The court is of opinion that the plaintiff was within the course of his employment at the time he received his injury.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, BELL and WILLIAMS, JJ., concur.
TURNER and MATTHIAS, JJ., dissent.
This is a close case which has given me difficulty. A persuasive argument can be advanced that on the date of the injury, to wit, October 29, 1942, plaintiff owed no obligation of service to The Cincinnati Coffin Company and that the relation of employee and employer theretofore existing had become one merely of creditor and debtor.
It may also be asserted with some degree of force that when plaintiff went to the boiler room to collect his personal effects, he so far departed from the purpose for which he then had a right to be on the employer's premises that he was a trespasser at the time and place of his injury.
However, in my opinion, a broader view of the situation should be taken. Although on October 29, 1942, plaintiff's employment was at an end in the sense that he had ceased to work under a contract of hire, it had not actually terminated until the employer had met its contractual obligation of paying plaintiff his wages. Plaintiff's excursion to the boiler room in a customary and permitted manner and for a proper purpose, was an incident of no controlling significance.
In a workman's compensation case, the question of whether an injury sustained occurred in the course of and arose out of the employment is usually one of fact. 42 Ohio Jurisprudence, 764, Section 136. Both the trial court and the Court of Appeals having resolved that issue in plaintiff's favor upon tenable grounds, such determination should not be disturbed by this court.