Second petition for rehearing denied September 9, 1930 ON PETITION FOR REHEARING (291 P. 375) In Banc. The petition for rehearing displays much evidence that plaintiff's counsel has again bestowed studious attention upon this case. The case is an important one not only on account of the severe injury to the plaintiff, upon which it is predicated, but also because of the consequences which attach to the solution of the difficult problem whether the plaintiff was a passenger upon the defendant's railroad, or possessed the status of an employee returning to his work. Our decision adopted the latter view, and held that his redress must come from the industrial accident fund. While we remain satisfied that our conclusion was correct, yet in appreciation of the attention which counsel for the plaintiff have again given to this cause, we shall state briefly our conclusions upon several issues which they urge in their brief.
Plaintiff insists that our decision has discarded, without justification, the common law definitions of the phrase "an accident arising in the scope of the employment." It is true that we have not given those definitions controlling effect; but we have not disregarded them. The parts which immediately precede and follow the language complained of, show that in *Page 525 construing the act we have adopted the practice followed generally by other courts, and previously embraced by ourselves, by declining to look to the words "an accident arising out of and in the course of the employment" alone for a statement of those injuries which are compensable.
The plaintiff urges that the phrase "within the scope of his employment" was well defined in litigation wherein a servant brought an action of common law negligence against his master and, that under the rules of statutory construction, we should apply the definition, written in those cases, to the phrase "accident arising out of and within the course of his employment." The courts, in applying the rule that an injury to be compensable must have been received while the employee was acting within the scope of his employment, experienced difficulty at times in determining the degree of proximity which must exist between the act, in the performance of which the servant was engaged at the moment of his injury, and the work which his master hired him to perform. Since the plaintiff sustained his injury while riding upon a railway car, operated by the defendant, we shall consider only the subdivision of the above common law rule which the courts applied in similar instances.
From Labatt's Master and Servant (2d Ed.), § 1555, we quote:
"A servant who, at the time of the accident in suit, was being transported on a railway car or other vehicle furnished for the purpose of facilitating the performance of his work, is deemed to have been injured in the course of his employment, and therefore can not recover if the injury was the result of risk known to and appreciated by him * * *. The inability of such employees to recover has been affirmed, both where the accident occurred while they were journeying *Page 526 between two points at which work was to be done, and where it occurred while they were being transported from the place where they resided to the place where they worked."
In the succeeding language Mr. Labatt points out that the law regarded the employees as under the control of his master in the above situations; the mere fact that the latter permitted the servant to sit inert, and did not demand the performance of active duty during the transportation was not deemed a negation of the right. Likewise the common law regarded the conveyance as an instrument which facilitated the performance of the work in hand like any tool or piece of machinery employed in the achievement of the desired result. But, according to Mr. Labatt, when the "injured person was traveling entirely for his own purposes, and the right of the master to exact the performance of services was not merely dormant, but wholly suspended," the defense of common employment was not available because under such circumstances the employee was not engaged in the course of his employment. We shall now consider several cases which the plaintiff especially urges upon our attention. They are: Knahtlav. Oregon Short Line, etc., R.R. Co., 21 Or. 136 (27 P. 91);Simmons v. Ore. R.R. Co., 41 Or. 151 (69 P. 440, 1022); Putnamv. 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);Susznik v. Alger Log. Co., 76 Or. 189 (147 P. 922 Ann. Cas. 1917C, 700); Stark v. State Industrial Acc. Com., 103 Or. 80 (204 P. 151); Wells v. Clark Wilson Lbr. Co., 114 Or. 297 (235 P. 283); Brady v. Ore. Lbr. Co., 117 Or. 188, 118 Or. 15 (243 P. 96, 245 P. 732, 45 A.L.R. 812). We reviewed some of these cases in our previous decision. We did not overlook the Susznik *Page 527 case, although inadvertently we failed to mention it in our decision. The first three of the above cases were brought to recover damages resulting from alleged infractions of the common law standard of care owed by an employer; all three of those cases were determinded before the enactment of the Workmen's Compensation Act. In the Knahtla case the plaintiff was employed by the defendant as a section hand; he was being transported by it during working hours to a place where a landslide had deposited itself upon the right of way. Before that place was reached the train dropped into a ravine inflicting an injury upon the plaintiff. This court held that the plaintiff's status was that of an employee and not a passenger. In the Simmons case the plaintiff was a fireman, upon the defendant's railroad, who made his headquarters at Kamelia. He was paid by the "run," receiving no compensation when not at work. Contributions previously made by him to his employer entitled him to medical attention. On the day in question he had taken a "lay off" so that he could visit the company's doctor at La Grande. While returning to Kamelia upon the defendant's train he was injured through its negligent operation. His transportation was provided by the defendant free of charge. The decision held that the injury did not occur in the course of his employment and that his status was that of a passenger. In the Putnam case the injury befell the deceased while she was being transported in an elevator, operated by her employer, to the fourth floor of the building occupied by it. The injury occurred at 8:20 a.m.; work did not begin until 8:30 a.m. The decision held that the injury did not occur in the course of the employment.
It will be observed that in the first case the plaintiff was subject to the commands of his employer at the *Page 528 time the accident occurred; the train could have been stopped, and the men could have been ordered to work at any moment the employer chose. In the Simmons and Putnam cases the injuries occurred when the employees were not subject to the commands of their employers. When the Putnam case is compared with those cited in our previous decision, which applied the provisions of the Workmen's Compensation Act, it will be readily observed that the latter are more liberal in bringing an employee within the scope of his employment. Likewise when the language of Mr. Labatt, previously quoted, and the words of Chief Justice ROBERT S. BEAN in the Simmons case, wherein they defined the meaning of the phrase "within the scope of his employment," is compared with the language employed by Mr. Justice HENRY J. BEAN in Stark v.State Industrial Acc. Com., in defining what accidental injuries are compensable under the Workmen's Compensation Act, it will be observed that the law last mentioned is much more inclusive than the former. The courts evidently believe that, since the purpose of Workmen's Compensation Acts is substantially different from an action of common law negligence, this new legislation was intended to grant relief to a larger number of persons than were affected by the common law action.
We come now to the Susznik, Stark, Wells and Brady cases, all of which construed or applied provisions of Workmen's Compensation Acts. In the Susznik case the plaintiff sought employment from an agency; he received a ticket and was directed to the office of the defendant in Portland. The latter sent him to Skamakawa, Washington, where he boarded the defendant's train and was transported to the logging camp. Immediately upon arriving at the latter place *Page 529 he received the injury which constituted the subject-matter of the action. The complaint alleged that at the time of the accident the parties sustained to each other the relationship of passenger and carrier. The answer, after a series of denials, alleged that the plaintiff was an employee of the defendant at the time he received the injury, and was therefore compelled to look to the Workmen's Compensation Act of the state of Washington for indemnity. The circuit court struck this defense from the answer. The plaintiff had a judgment from which the defendant appealed. Our decision held that the circuit court erred in entering that order because the "defendant was clearly entitled to plead and prove if it could, that the relation of master and servant existed, and that, by reason of the compensation act of the state of Washington, the courts of Oregon were without jurisdiction to entertain the action." The decision held further that this error was harmless because, the facts failed to prove that the plaintiff was an employee of the defendant "in the sense that he was entitled to indemnity under the compensation act of the state of Washington." It pointed out that the plaintiff "had not left the immediate vicinity of the train, had not reported to the foreman, had not spoken to any one in charge, was not on the pay roll, and never did do any work or receive any compensation from the defendant." In the Stark case a workman, employed by one who was subject to the terms of the Workmen's Compensation Act, sustained a fatal injury while participating in a scuffle with a fellow employee. It was held that the accident arose out of and in the course of the employment. Before reaching this conclusion the decision announced the broad principles for the interpretation of the beneficiaries of the act which are reiterated in our previous decision. The Wells case was *Page 530 not unlike the Susznik case. In the latter Susznik, the plaintiff, had been sent by his prospective employer to the camp; in the Wells case the injured party was sent to the camp by the employment bureau, but had not yet interviewed the prospective employer. It was held that she was an invitee and not an employee. In the Brady case the defendant had rejected the protection afforded by the Workmen's Compensation Act; that piece of legislation was therefore involved in the action only so far as it deprived the employer of defenses previously available under the common law. Brady had been employed in the defendant's camp. In the month of November snow fell at the scene of operations to such an extent that logging was suspended, "time checks for the company's employees were made out," the price of board was reduced from that which was charged when the camp was in operation to a smaller amount, and the train was dispatched to convey the men out of the camp to the main line. Due to the depth of the snow the train failed to arrive at the expected time. The camp had closed on Saturday; on Sunday the plaintiff and four others decided they would wait no longer and would make their way through the snow to a place called Dee, sixteen miles distant. Accordingly they accepted their time checks and proceeded on their way. On the journey the plaintiff sustained severe injuries by reason of becoming frost bitten. The decision held that since his employment was terminated before he left the camp his injuries did not arise out of and in the course of the employment.
The plaintiff insists that our decision is out of harmony with these seven cases. We do not believe that it is essential that we should endeavor to harmonize our holding in the present case with the first three. The Workmen's Compensation Act endeavors to cast *Page 531 upon the industry the expense of the rehabilitation and relief of workmen injured during their participation in it. Its objective is more comprehensive than the principles which govern the common law action of negligence. The failure of the latter to meet the needs of modern industrial demands caused the enactment of the new legislation. We accept whatever help the old decisions supply, but do not cramp the new legislation into the old definitions. It is true that in the Susznik case one of the tests, employed in the Putnam case for the purpose of determining whether the injury occurred in the scope of the employment, was used. It produced the correct result and under similar circumstances we might use it again. But that fact does not demonstrate that the common law definition of "the scope of employment" is binding upon the present kind of action. Our present case can be readily harmonized with the Wells, Brady, Susznik and Stark cases. In the latter case the dependents of the deceased employee were held entitled to relief from the fund, and the broad principles of construction therein announced support our conclusions in this case. In the Susznik and Wells cases we held that the employment had not yet commenced. In neither case had any contribution been made to the industrial accident fund, nor had any one made himself liable to contribution. Compensation is paid, not as a matter of charity, but as a business enterprise. The act several times refers to the payroll of the employer, and evidently contemplates that when an employee's name is entered upon that document liability to contribute commences. Neither the name of Wells nor the name of Susznik had been entered upon the payrolls of their prospective employers. In those cases no compensation could be awarded because no one had paid for it, nor had any one made himself liable *Page 532 for payment. In the Brady case the time checks were written on Saturday; on Sunday Brady accepted his check, and his injury did not occur until the following day. In our present case two important facts, not found in the Susznik and Wells cases, are present; they consist of the circumstances (1) the employment had been begun and had not terminated, (2) the Industrial Accident Commission had signified willingness to grant relief, and thereby inferentially stated that the necessary contributions to the fund had been discharged. The above being the facts we believe that our present decision does not conflict with the holdings in the Susznik, Stark, Wells and Brady cases. It is our conclusion, therefore, that when one possesses the status of an employee, and sustains an injury as a result of his participation in the industry the provisions of the Workmen's Compensation Act are applicable to his employer and to himself.
The plaintiff calls to our attention the recent decision of the supreme court of Washington announced May 27, 1930, in the case of Hama Hama Logging Co. v. Department of Labor and Industries,288 P. 655. In that case one Spears, an employee of the logging company, was riding upon a speeder from the camp upon a mission of his own when an injury befell him. The speeder was provided for the accommodation of the employees of the logging company. The facts are not substantially different from those before us. The department of labor and industries, which supervises the administration of the Workmen's Compensation Act, rejected Spears' claim and he thereupon proposed to file an action for damages against the employer. The logging company appealed from the order of the department to the circuit court, which reversed the department; thereupon the appeal was taken to the *Page 533 supreme court. The Washington court, in the case of Wadnec v.Clemons Logging Co., 146 Wash. 469 (263 P. 592), cited in our previous decision, had held that a workman on his way to the camp was subject to the provisions of the compensation act, and inBristow v. Department of Labor and Industries, 139 Wash. 247 (246 P. 573), had held that an employee injured at the plant, though not engaged in the course of his employment, was entitled to compensation. When these two cases were before the court the compensation act provided:
"Workmen means every person in this state, who is engaged in the employment of an employer coming under this act, whether by way of manual labor or otherwise, and whether upon the premisesor at the plant, or he being in the course of his employmentaway from the plant of his employer." Rem. Comp. Stat. Wash. § 7675.
Following the two above decisions and prior to the injury sustained by Spears the act was amended by striking out the portion of the above in italics. In its amended form the act limited relief to a "workman * * * who is engaged in the employment of an employer coming under this act, whether by way of manual labor or otherwise, in the course of his employment." Laws Wash. 1927, p. 816, § 2. Under these circumstances the court was compelled to take a more constrained view of the beneficiaries of the act than we are. It held that Spears was not entitled to relief from the fund.
Plaintiff contends that we have failed to explain how the validity of this act can be sustained when the construction is placed upon it which we have assigned *Page 534 to it. He relies upon the language of the Federal Supreme Court in Cudahy Co. v. Parramore, 263 U.S. 418, wherein the court said:
"It may be assumed that where an accident is in no manner related to the employment, an attempt to make the employer liable would be so clearly unreasonable and arbitrary as to subject it to the ban of the Constitution; but where the accident has any such relation we should be cautious about declaring a state statute creating liability against the employer invalid upon that ground."
In that case one Parramore was injured upon the public streets while on his way to work several minutes before his duty commenced. The application of the act by the courts of Utah to such a situation was held not in conflict with the constitutional limitations. We believe that the construction which we have placed upon the act is likewise in harmony with constitutional rules.
It follows that the petition for rehearing will be denied.
RAND and BELT, JJ., concur.
McBRIDE, J., absent.