Clark v. Daniel Morine Construction Co.

559 P.2d 293, 98 Idaho 114, 1977 Ida. LEXIS 325

• Court: Idaho Supreme Court
• Decided: January 11, 1977
• Docket: 12195
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal from an order of the Industrial Commission denying death benefits to appellant (widow of the decedent) on the ground that the accident did not arise out of and in the course of decedent’s employment. We affirm.

On June 4, 1975, the decedent Leslie Clark agreed to begin work for respondent Daniel Morine Construction Company at 7 a. m. of the following day as a bulldozer operator at a remote work site in the Clear-water National Forest. Such agreement was reached between the parties at Coeur d’Alene, Idaho, which is over 200 miles from the work site. At 2 p. m. on June 4, Clark left Coeur d’Alene in the company of two other vehicles owned by Morine. Although not required to do so, since Clark knew the general area around the work site, he agreed to follow the other vehicles.

After the vehicles passed Headquarters, Idaho, they travelled a winding, twisting, one-lane, improved forest road which in part paralleled the Clearwater River. That road had been recently graded, was open to the public as well as to Forest Service employees and loggers, and was described as well travelled. While traversing a stretch of that road which was fairly straight and approximately 20 feet in width, Clark’s pickup inexplicably left the road and went into the river. The time of the accident was fixed at approximately 11 p. m.; the night was extremely dark and the personnel in the preceding vehicles were not aware of the accident. Clark’s body was not recovered until some days later, and the cause of death was attributed to drowning.

Appellant’s argument is essentially that the travel time, the darkness, the dust and the inherent danger presented by a winding road bounded on one side by mountains and on the other by the river presented a special exposure to a hazard or risk peculiarly assodated with the employment. Thus, it is argued, this case falls outside the rule that travel to and from work is not covered by workmen’s compensation protection.

Generally it is presumed that an employee travelling to and from work is not within the course of employment and thus not covered by workmen’s compensation protection. However, an exception to that rule does exist when such travel involves special exposure to a hazard or risk peculiarly associated with the employment and that risk is causally connected to the accident. Jaynes v. Potlatch Forest, Inc., 75 Idaho 297, 271 P.2d 1016 (1954); Diffendaffer v. Clifton, 91 Idaho 751, 430 P.2d 497 (1967); In re South, 91 Idaho 786, 430 P.2d 677 (1967); Spanbauer v. Peter Kiewit Sons’ Co., 93 Idaho 509, 465 P.2d 633 (1970). We point out that all the above cases involved “employees” and not persons who were to become “employees” at sometime after the accident in question.

In the case at bar one of the other vehicles was a lowboy ¿type of truck transporting Morine’s bulldozer to the work site. It was operated by an independent contractor. The other vehicle was a supply truck driven and occupied by two teenage daughters of Morine. The testimony of those vehicle operators was that in their opinion the trip and the road travelled presented no particular hazard or risk. Other factors were suggested as possibly contributing to the cause of the accident, but were not passed on by the Commission and are not treated here.

The Industrial Commission found that the road presented no peculiar difficulty for a driver. That finding is sustained by the evidence and will not be disturbed on appeal. I.C. § 72-732; See also, Gradwohl v. J. R. Simplot Co., 96 Idaho 655, 534 P.2d 775 (1975); Johnson v. Boise Cascade Corp., 93 Idaho 107, 456 P.2d 751 (1969). In the absence of a finding of a special exposure to a hazard or risk peculiarly associated with employment, the general rule is prevailing. Affirmed.

McFADDEN, C. J., and DONALDSON and BAKES, JJ., concur.