State Compensation Insurance Fund v. Industrial Accident Commission

William D. Casey, an employee of the L. D. MacLean Company in San Francisco for more than twenty years, died on May 31, 1927, as a result of injuries sustained by him six days prior to his death. His sur- . viving widow, Annie Casey, thereafter applied to the Industrial Accident Commission for compensation and was granted an award which the petitioner herein, as the insurance carrier for said company, seeks by this proceeding in certiorari to have annulled. The sole question presented for determination is whether, contrary to the finding of said Commission, the nature of the service the decedent was performing at the time he was injured was such as to bring the case within the operation of the so-called “going and coming” doctrine, which in effect declares that injuries sustained by an employee while going to or returning from Ms work are not compensable under the provisions of the Workmen’s Compensation Act (27 Cal. Jur. 380).

As stated, the decedent had been working for said company for many years, and for some time immediately preceding his death filled the position of outside salesman, his duties being to call on customers, take orders, and sell goods; and he was required to report each morning for duty at the company’s store on Sutter Street. On May 25, 1927, before leaving the store at the end of Ms day’s work he was instructed by one of the company’s executives to return to the store that night, after he had finished Ms dinner at

It is well settled, as petitioner contends, that ordinarily employees who suffer injuries while going to or returning from their place of work are excluded from the benefits of said act, for it is held that they are not at that time rendering a service growing out of or incidental to their employment (27 Cal. Jur. 380). But the foregoing rule is not absolute. It is subject to many exceptions. As said in Makins v. Industrial Acc. Com., 198 Cal. 698 [ 49 A. L. R. 411 , 247 Pac. 202 ], the rule generally known as the going and coming rule, “has been considered and applied by this court in numerous cases where the person injured was employed to perform service at or in a particular plant or upon particular premises and the injury claimed to be compensable was inflicted while he was going to or returning from his place of employment, or where the employee had left the place of employment on an errand personal to himself. The general rule, subject to many exceptions, however, is that injuries inflicted under the foregoing circumstances are not compensable. (California C. I. Exchange v. Industrial Acc. Com., 190 Cal. 433 [ 213 Pac. 257 ]; London Guar, & Acc. Co. v. Industrial Acc. Com., 190 Cal. 587 [ 213 Pac. 977 ].) Awards have been affirmed by this court, however, where the facts of the case showed that the injured employee was not at the time he was injured upon

As the Commission held, the evidence here proves that this was not the ordinary case of an employee being injured while following his usual custom of going to or coming from the place where he works. On the contrary, it shows beyond doubt that decedent was injured while returning from a special errand which he was performing under the direction of his employer and which required him to leave his home at night, after regular working hours, and called for a service outside of his regular duties as salesman, the sole purpose of which was to help his employer in the latter’s business; and it was because of the relationship of employer and employee that the one requested the service and the other rendered it. Manifestly, under such circumstances, it would be a harsh and indefensible rule which would withhold compensation for an injury received by an employee in the performance of such an errand. As pointed out in Ocean Accident & Guarantee Co. v. Industrial Acc. Com., 173 Cal. 313 [L. R A. 1917B, 336, 159 Pac. 1041 ], in discussing the question of the application of the going and coming doctrine, “the right to an award (under the Workmen’s Compensation Act) is not founded upon the fact that the injury grows out of and is incidental to his employment. It is founded upon the fact that the service he is rendering at the time of the injury grows out of and is incidental to the employment. Therefore, an employee going to and from his place of employment is not rendering any service, and begins to render such service only when, as has been said, arriving at the place of his employment, he proceeds to use some instrumentality provided, by means of which he immediately places himself in a position to perform his tasks.” (Italics ours.)

Obviously, the service decedent was performing on the night he was injured did not have its inception at the store upon his arrival there, nor did it end there immediately upon leaving. It began the instant he left his home on the

In support of its contention for the application of the “going and coming” rule petitioner has cited a number of decisions of the Industrial Accident Commission, which, however, were not reviewed by the courts; also a few cases from foreign jurisdictions. But the facts of the cases cited are materially different from those of the present one, because in those cases it was shown that the employees when injured were not engaged in the performance of any special errand under instructions from their employers, but were injured while on their way to or coming from their places of employment, where they intended to work or had worked overtime, after regular hours, in the performance of their regular duties. On account of these varying circumstances we do not deem those cases in point (Makins v. Industrial Acc. Com., supra).

For the reasons above stated we are of the opinion that the Commission was fully warranted in finding that the present ease is not subject to the operation of the “going and coming” rule. The award is therefore affirmed.

Tyler, P. J., and Cashin, J., concurred.

All the Justices concurred.