delivered the opinion of the court.
Thе appellants complain of an award made by a majority of the Industrial Commission (Hon. C. G. Kiser, Commissioner, dissenting).
Meade was employed by Dreyfus & Company, as night watchman, at their store located at the southeast, corner of-Second and Broad strеets, Richmond, Va., and his duty required him to be on the premises or immediately adjacent thereto. About 11:30 p. m., May 10, 1924, he was walking north across Broad street, at First street, a block away from the store, for the purpose of getting а cup of coffee at a restaurant about two blocks away from the store, when he was struck by an automobile, from which he sustained injuries which he claims-are compensable by his employer under the Virginia workmen’s сompensation act. (Laws, 1918, chapter 400.)
The error assigned is that the commission erred in holding that this injury arose “out of and in the course of” Meade’s employment.
That an injury to be compensable must arise out of and in the course of the employment, is conceded, for so the act provides.
In the case of
Mueller Construction Co.
v.
Industrial Board,
We find ourselves unable to agree that any such distinction can be logically supported. To engraft such an exception introduces an element of uncertainty which it would be difficult either to limit or to apply practically, and which would do violence to the language of the statute. x
In
Taylor
v.
Binswanger & Co., supra,
this court has said that “injuries received by employees off the рremises of the employer in going to or from lunch, do not arise out of or in the course of their employment.” And in
Life Insurance Co. of Va.
v.
Wood, supra,
the Honorable Beverly T. Crump said: “The risk of going to lunch is not a risk incident to the employment, but is rather an incident of life generally.” And furthermore: “Conceding that the claimant was still ‘in the course of his employment’ while riding his bicycle on the return from his lunch, and therefore under the protection of the statute in case of injury to him from any causе, having its origin in, or reasonably connected with, or incidental to, or in any way arising out of, his employment, did the accident so ‘arise out of the employment?’ This question must be answered in the negative both upon principle and authority. As a matter of authority,- the eases hold that any accident occurring on the premises during the day’s period of employment or while the employee is still on the premises going to or returning from work, or using any special way or structure to gain access to the place of work, though such way or structure is not under the control of the master, may be made the subject of compensation under the statute. When none
“What then is the determining factor? For that under the circumstances prеsented here, we must look to the character of the employment. . Was the nature of the employment here such as to render a risk from such an accident as may occur to any one of the public upоn the streets of the city, a risk incidental to the employ.ment or otherwise? * * * *
“It is manifest that in the instant case the occupation of the claimant was not such as to require him during the lunch hour, or at any other time, to be exposed to the ordinary street hazards. Where he should take his lunch, whether or not in the employer’s building or elsewhere, on what street he should go, how he should travel, were not matters in any way incidental to or connected with the character of work for which he was employed.”
And in summing up the whole subject, Judge Crump says, further: “The chief fact to be ascertained, while stated in varying terms by the different judges, is whether the exposure to the risks of the streets was voluntary on the part of the servant, or whether it was incidental to the performance of his work, or in any way connected with it, so as to make his presence on the street a part of the duty required of him by reаson of his employment. In the latter case an injury sustained on the street is compensable, otherwise it is not.”
We think it obvious that such an injury which occurs to an employee on the street, either while going for
There are many classes of employees, however, whose duties to their employers require their presence upon the public streets, either frequently or continuously, and accidental injuries to them on the streets have been frequently held to be compensable. Among these are salesmen, truck drivers, messengers, solicitors, etc., who by the very nature of their employment are exposed to the hazards of the streets to a greater degree than the general public.
Chandler
v.
Industrial Commission of Utah,
There are cases in whiсh awards have been sustained,, although the employee was at the time doing something purely personal to himself, and holding that one may be thus occupied during the time in which he is also on duty and in the service of his master; but this principle cannot be extended to cover this injury, because it cannot be fairly said that a night watchman, whose place of duty is on the premises to be watched, or immediately adjacent thereto, is still on duty and serving his mаster when he has left the premises to cross the street and go two blocks away to enter another building on a purely personal errand. This errand was neither connected with the employment nor incident thereto.
Our conclusion, then, is to reverse the order of the Commission.
Reversed.