109 F.2d 674 | D.C. Cir. | 1940
In this workmen’s compensation
Garner, the injured employee, was a driver for Green Line, Inc., which operates sightseeing cars. About 10:30 a. m. on July 20, 1938, he delivered passengers at the Bureau of Engraving and Printing. He was instructed to go to Mount Vernon, and pick up passengers there at noon. He reached Mount Vernon at 11:15. Having forty-five minutes to wait, he decided to have lunch. There was a restaurant at Mount Vernon. However, Garner drove some two miles 'to a lunchroom, which was not on the route he had just taken bat was on another route which he might have taken between Washington and Mount Vernon. He ate lunch and started back. About 11:50, when he was a quarter of a mile from Mount Vernon, the car overturned and he was injured.
Garner had no instructions as to thé. route he should take or when or where he should eat. He had no regular working hours. Drivers had to eat “wherever and whenever they could according to the opportunity and time available.” The company’s president and active manager testified as follows:
“Q. Is it in violation of the company’s rules for one of your drivers to use the car in going a short distance for his lunch ? A. Well, now, not while he is on a job like that; I would say that there is nothing against it.
“Q. For instance, if one of your drivers drops a party of passengers at the Con
The manager’s testimony would support a finding that Green Line and its drivers understood that a man did not abandon or interrupt his employment by driving a reasonable distance to get lunch. We cannot say that a drive of two miles is necessarily unreasonable. To eat at Mount Vernon would have required less driving, or none, but the record does not tell us how much walking it would have required. In Garner’s opinion “the food at the Mt. Vernon Lunch Room is not as substantial as that at the other place, and you get more for your money at the other place.” As drivers can seldom work all day at their maximum efficiency without eating lunch, their eating lunch serves their employer’s purposes as well as their own. There is nothing to prevent an employer from agreeing that the employment shall include travel which, in the absence of an agreement, it might not include; and an “agreement to that effect may be either express or be shown by the course of business.”
The insurer cites Morgan v. Hoage, 63 App.D.C. 355, 72 F.2d 727
Our conclusion is that the evidence supports the Deputy Commissioner’s finding that the injury arose out of and in the course of employment.
Reversed.
Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, U.S.C., Tit. 33, Ch. 18, 33 U.S.C.A. § 901 et seq.; made applicable to the District of Columbia as a Workmen’s Cormpensation Law, 45 Stat. 600; D.C.Code, Tit. 19, Ch. 2, § 11.
Under 33 U.S.C. § 921(b), 33 U.S.C.A. § 921(b).
Voehl v. Indemnity Insurance Company of North America, 288 U.S. 162, 170, 53 S.Ct. 380, 77 L.Ed. 676, 87 A. L.R. 245.
Bollard v. Engel, 254 App.Div. 162, 4 N.Y.S.2d 363, affirmed, In the Matter of the Claim of Francis Bollard v. Engel, 278 N.Y. 463, 17 N.E.2d 130; Industrial Commission of Ohio v. Henry, 124 Ohio St. 616, 180 N.E. 194; Monroe County v. Industrial Commission, 184 Wis. 32, 198 N.W. 597; Sundine’s Case, 218 Mass. 1, 105 N.E. 433, L.R.A.1916A, 318. Cf. T. J. Moss Tie Co. v. Tanner, 5 Cir., 44 F.2d 928, certiorari denied, 283 U.S. 829, 51 S.Ct. 353, 75 L.Ed. 1442. In Matter of Johnson v. Smith, 263 N.Y. 10, 188 N.E. 140. the court by a vote of 4 to 3 denied compensation. But there the employee contracted a disease in a restaurant. So far, if at all, as the doctrine of that case was applicable to an accident on a highway, it is apparently overruled by the Bollard case, supra.
Jones v. Casualty Reciprocal Exchange, Tex.Civ.App., 250 S.W. 1073; Stratton v. Interstate Fruit Co., 47 S. D. 452, 199 N.W. 117; Bisdom v. Kerbrat, 251 Mich. 316, 232 N.W. 408. Cf. Railway Express Agency, Inc., v. Lewis, 156 Va. 800, 159 S.E. 188, 76 A.L. R. 350.
Certiorari denied, 293 U.S. 606, 55 S.Ct. 122. 79 L.Ed. 697.