Appeal from Circuit Court, Umatilla County. William W. Wells, Judge. No. L-10,292.
Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison and Donald N. Atchison, Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Foley, Judge.
This is a workmen's compensation appeal. The question is whether claimant was within the course and scope of his employment at the time he was injured in a motorcycle-automobile collision during his noon hour from work on May 14, 1971. The hearing officer, Workmen's Compensation Board and circuit court successively resolved this question against the claimant.
Claimant was a regular farm employe of Mr. Walchli who was engaged in intensive diversified cropping of 450 to 500 acres of land in several fields spread over approximately a 25-mile area around the towns of Hermiston and Stanfield in Umatilla County. Claimant owned a motorcycle which was kept continuously for about 10 days preceding the injury, and frequently on other occasions, at the headquarters shed where employes usually gathered before dispersing to work on Mr. Walchli's various properties. Claimant usually rode back and forth to work from his home which was in Hermiston with another employe, Keith, in Keith's personally owned vehicle. Keith and claimant often used their own respective vehicles in traveling from workplace to workplace
after they reported for work, and some of the time Walchli supplied them with fuel therefor from his pump at the shed. There was also evidence that he disapproved of this supplying of fuel to them, and had "bawled" them out for taking his fuel. In any event, the evidence is clear that he knew about and acquiesced in, at the least, their use of their personal vehicles in this manner.
On the morning of May 14 claimant and Keith came to work several minutes late in Keith's vehicle. They parked at the shed and then went with Walchli and Walchli's brother-in-law Jerry in employer-owned vehicles to another field several miles away near Stanfield where they all worked during the morning. Noon hour normally was from 12 to 1 and it was unpaid time. At noon claimant and Keith returned to the shed in one of Walchli's vehicles and Walchli and Jerry returned in another. At approximately 12:20 p.m. claimant and Keith were in Keith's vehicle leaving to go to Hermiston for lunch when Walchli drove his vehicle up to Keith's. Walchli suggested or told claimant to ride his motorcycle home for lunch and afterward to go on it back to the field near Stanfield, where they had been, to do rotovating, inasmuch as the other work which the four together had been doing was completed and the others would not return to that place. There is confusion and contradiction in the record about what, exactly, Walchli told claimant with reference to the taking of the motorcycle and the time he could take for the noon hour. We detail the highlights of the testimony about the conversation in the footnote.*fn1 The record is clear that, as a consequence
of this conversation with Mr. Walchli, claimant got out of Keith's vehicle and started to ride home on his motorcycle. The accident occurred while claimant was on his way home.
Mr. Walchli kept no time records for his employes but depended upon them to keep their time and he paid according to what ...