213 P. 257 | Cal. | 1923
Lead Opinion
This is a proceeding to review and have annulled an award of the Industrial Accident Commission against petitioner, the insurance carrier of the Union Ice *434 Company, employer of Charles W. Young, deceased, made in favor of his widow and his minor son, in the maximum amount for death benefit allowed under the Compensation Act.
The facts are undisputed. Petitioner's statement thereof, accepted by the respondents, is its follows: "The Union Ice Company is engaged in the manufacture and delivery of ice in Los Angeles and vicinity, with plants at Hollywood and elsewhere. Delivery routes are laid out by its route foreman to enable its customers to be supplied in the most efficient and economical manner, and so laid out as to avoid the necessity of covering the same streets twice in any one day. Each driver is assigned to a designated route and one that he can cover in an average day, usually fairly early in the afternoon, and is through for the day and at liberty to go home as soon as the assigned route has been covered. The drivers are given more or less leeway in the time and manner of covering the route, and are expected to get their lunch during the day. No specified hour is set aside for lunch, the drivers being allowed to procure lunch as and whenever desired, in a public restaurant, at home or elsewhere.
"The deceased was an old employee of the Union Ice Company, thoroughly familiar with the particular route assigned to him. Frequently he covered a part of his route which would bring him to a cafeteria located at Palm Avenue and Santa Monica Boulevard, Sherman, about 7 A. M., made a delivery of ice to the cafeteria, and got his breakfast, then covered another portion of the route, returning to this same cafeteria about noon for lunch. Neither his assigned route nor the requirements of his customers necessitated his return to the cafeteria during the noon hour, this return being for the sole purpose of obtaining his noonday meal. As stated, he could have gone home for lunch, had he so desired, or obtained it elsewhere, the only requirement being that he make his route in average time, with considerable latitude to him. If he wanted to get home very early, he might hurry over his route or otherwise could take his time.
"On the day of the accident, as on frequent other occasions, the deceased was accompanied over his route by his minor son, the respondent Merle Wayne Young, the two *435 taking breakfast at the cafeteria at which time a delivery of ice was made there, and then returning to the cafeteria for lunch at about 11:30 A. M., and for no other purpose, the deceased having no business to transact in that vicinity at that time for his employer. The truck was parked on the opposite side of the street, and the two crossed the street to the cafeteria for lunch. After luncheon at the cafeteria, the father left the son in the cafeteria, and went on down the street to a cigar-store to get a 'smoke.' The boy crossed the street in safety to the truck, but the father, upon starting across after coming out of the cigar-store, was run down and killed after proceeding but a little way into the street, and before he crossed to the side on which his truck was parked."
[1] The finding of the Industrial Accident Commission on these facts is that the "injury occurring as above set forth, arose out of, and happened in the course of the employment of said employee." But such finding is not supported by the concurrence of the necessary conditions of compensation required by the act. (Stats. 1919, p. 912, sec. 6 [a].) [2] To entitle the representative of the deceased to recover in this case it must be shown that the employee, at the time of the injury, was not only "performing service growing out of and incidental to his employment, and acting within the course of his employment," but also that the injury was proximately caused by such employment. In the very broadest sense, of course, it is true that the injury to the decedent grew out of and was incidental to his employment, since it was necessary that he should return from the place where he lunched to the truck. The right to an award is not alone founded upon the fact that such is the case, but upon the fact that theservice the employee is rendering at the time of the injury grows out of and is incidental to the employment. For instance, it is the rule that an employee going to and from his place of employment is not rendering any service, and begins to render such service only when he arrives at the place of his employment, and proceeds to use some instrumentality provided, by means of which he immediately places himself in a position to perform his task. (Ocean Acc. etc. Co. v. Industrial Acc.Com.,
Other cases affirming the rule which prevails in this state are Clarke v. Voorhees,
On the day on which the injury occurred, Young, the decedent, breakfasted at the cafeteria located on Palm Avenue and Santa Monica Boulevard, at which time he made *437 his delivery of ice. Neither his assigned route nor the requirements of his customers necessitated his return to that place. He had no business to transact for his employer in that vicinity. His movements during the time he was getting his noonday lunch were dictated wholly by his own desires and as the convenience of the route admitted. Had he gone home for lunch, and been injured while returning to the place of his employment, the situation would be plain. We see no distinction between such a case and this. When he ceased delivering ice, deviated from his route, and returned to the cafeteria for lunch, he was not doing anything required by or incidental to the employer's business. When struck down by the automobile and injured, his relation to his employment had not changed.
It has been suggested that the injury to the deceased was the result of a hazard and risk to which he was exposed equally with the general public. That is unquestionably so, but, in view of the conclusion we have reached, it is not necessary to further consider that question.
Respondents rely very largely upon Burton Transfer Co. v.Industrial Acc. Com.,
The award is annulled.
Kerrigan, J., Myers, J., Lennon, J., Wilbur, C. J., and Seawell, J., concurred.
Rehearing denied.
In denying a rehearing the court filed the following opinion on March 17, 1923:
Addendum
The Industrial Accident Commission petitions for a rehearing or a modification of the judgment of this court so that the commission can admit additional evidence. It is unnecessary to modify the judgment for this purpose. [3] The effect of our decision is to vacate the judgment heretofore rendered by the Industrial Accident Commission and to set the matter at large, for proceedings not inconsistent herewith. (Carstens v.Pillsbury,
The petition for a rehearing is denied.
Wilbur, C. J., Lawlor, J., Lennon, J., Waste, J., Seawell, J., Kerrigan, J., and Myers, J., concurred. *439