James W. Stewart, claimant, was by the Industrial Accident Board refused compensation prayed against his employer, appellant, St. Joseph Lead Company. He appealed to the district court where the board's action was reversed, and a judgment entered, awarding him a compensation stipulated by respective counsel as reasonable. *Page 173 From that judgment, the mining company and its surety, Maryland Casualty Company, appealed.
From the record, it appears that while employed as superintendent by appellant mining company, and residing with his family in a house furnished him by his employer, claimant accidentally severed his thumb below the distal joint while splitting wood, in order to prepare the evening meal. The issue turns upon the question, whether or not the splitting of this wood constituted a part of claimant's employment. The board concluded that it did not: the district court held that it did.
The facts as found by the board were determined solely from the testimony of claimant himself. With respect to his duties and his remuneration for the discharge thereof, under verbal contract with his employer, claimant testified:
"Q. And will you describe generally what your duties have been during the last seven years at that mine? A. Why, it was my duty to oversee all the work and be responsible for all supplies and work done and the electrical work, of course, the power plant, and that sort of stuff I had to take care of myself.
"Q. In general, what were the terms of your contract? A. I would say I was getting $210 a month and all expenses other than food and clothing.
"Q. And what supplies, if any, do they furnish you? A. Why, wood, water, lights and furnished house.
"Q. Do you care for all of the company's property which is there at the house and about the mine? A. Yes. . . . .
"Q. Now, the wood which you were cutting, Mr. Stewart, were you cutting wood or splitting wood? A. Splitting wood.
"Q. To whom did the wood belong? A. It belonged to the St. Joe Lead Company.
"Q. You were preparing it for what use? A. For the use of the house. . . . .
"Q. State whether or not it was the arrangement under your contract of employment with the St. Joseph Lead *Page 174 Company that you attended to the duty of cutting wood for the house as well as other domestic duties around the house? A. Yes."
Having testified on cross-examination that the company furnished the wood, the following colloquy ensued:
"Q. And was the wood originally cut from the company's property? A. Yes.
"Q. And it was stacked up for your use? A. Yes.
"Q. And it was in such lengths and widths so that it would require further treatment before it would go in the stove? A. Yes.
"Q. Now, as I understand your duties, you were general superintendent of the property? A. Yes."
On redirect examination he testified:
"Q. This wood had been sawed into stove-wood lengths, had it, Mr. Stewart? A. Yes.
"Q. And in order to use it in the cook-stove it was necessary to split it? A. Yes.
"Q. It could not be used for cooking purposes at all until it was split, could it, Mr. Stewart? A. No."
Under the undisputed facts, the mining company furnished claimant wood, water, lights and a dwelling. The wood was cut by the company into proper stove lengths and by it stacked for claimant's use. Now, did its duty end here or was it compelled to proceed further and split the wood already stacked? Claimant had testified that a part of his duty was to "cut" the wood; at no time did he testify that it was his duty to "split" it. Cutting and splitting are just ninety degreees apart. It is true that claimant invoked the element of necessity, declaring that without such splitting the wood so stacked would have been unavailable for his purposes. And he therefore concludes that the splitting was a part of his contract.
But the fact established is that the company only undertook to "furnish" him wood, a term that must be subjected to its reasonable and usual interpretation. Had the fuel furnished been coal instead of wood; and had the company dumped a salable load into claimant's yard, consisting *Page 175 of lumps too robust for the fire-box of claimant's stove, would anyone seriously contend that the company would have been under duty to belabor the offending chunks into accommodating contours? Yet the duty in both cases must have been the same, viz., to furnish the material in such reasonable form as it is usually delivered in to the private consumer.
Claimant would avoid the conclusion by insisting that he did not stand in the shoes of the ordinary employee who chooses his own place of residence, and selects his own means of acquiring fuel; that he was required to live in a house on the premises where, "in order to live and thus meet the requirements of his contract with the company, he was forced to split wood for his own use." The patent response to this contention is that he was no more forced to split the wood in the one instance than in the other. In either case, it was a matter of doing it himself, or hiring someone else. In both cases, man power was available.
Judgment reversed. Costs to appellants.
Budge, Varian and McNaughton, JJ., concur.
Givens, C.J., dissents.
(April 19, 1930.) ON PETITION FOR REHEARING.