247 P. 202 | Cal. | 1926
The petition of respondent Industrial Accident Commission praying for a hearing by this court after decision by the district court of appeal, first district, division one, having been granted, the proceeding is properly before us for final determination. The respondent Commission made an award in favor of respondent George A. Craig, a youth fifteen years of age, who was injured by a traffic collision that occurred upon Grove Street, city of Oakland. The Commission found that said George A. Craig was employed by petitioner J.N. Makins as a deliverer or distributor of newspapers, and that the injury *700 sustained by said George A. Craig occurred in the course of and arose out of his employment. The circumstances of the injury and the contentions of the respective parties to the proceeding are well stated by Mr. Justice Cashin, author of the opinion adopted by said district court of appeal, and we hereby adopt it in part as follows:
"The compensation claimant was on December 6, 1924, in the employ of petitioner as a carrier of newspapers in the city of Oakland, his route of delivery being within a definite territory, which began at Fourteenth street and included the section between San Pablo and Telegraph avenues, extending north to the intersection of Grove street with San Pablo avenue, and thence covered the section between Grove street and Telegraph avenue to Thirty-sixth street in that city.
"Claimant in the course of his employment received each morning at the corner of Sixteenth street and San Pablo avenue a portion of the newspapers to be delivered, being supplied with additional papers at points along his route, and from Fourteenth street proceeded with such delivery in a northerly direction to the southeasterly corner of Grove and Thirty-sixth streets, at which point the last delivery by him in the course of such employment was made, no deliveries being made by him at any place west of the east side of Grove street. Claimant was paid a stated sum each month for the service rendered, furnished his own means of conveyance — which in this case was a bicycle owned by him, and his duties in every respect ceased each day upon the last delivery being made at the point above mentioned. On December 6, 1924, claimant, after the last delivery on his route and with the purpose of proceeding to his home, which was situated several blocks to the south and west, crossed to the west side of Grove street at or near its intersection with Thirty-sixth street, and proceeded thence in a southerly direction along said street, remaining, in accordance with the traffic regulations, on the west side thereof, to its intersection with Thirty-first street, at which point he received injuries from an automobile being driven westerly across such intersection.
"Respondent, as its conclusion from the above facts, found that the injuries occurred in the course and arose out of the employment and awarded compensation therefor. *701
"Petitioner in this proceeding bases his application for relief upon the contention that the facts shown, and which are not disputed, do not support such conclusion, and that therefore respondent acted in excess of its powers in making the award.
"Respondent contends that, the injuries having occurred on Grove street, though the westerly side thereof had not been traversed by claimant in the course of his employment in making deliveries, and at a point approximately five blocks south of the point where the last act in the rendition of services to petitioner was performed, claimant was still within his working territory, and that until he passed the corner of Sixteenth and Grove streets, where the first papers for delivery were received, he remained within the protection of the compensation act.
"The rule is well settled that an employee, in going to work, comes under the protection of the act when he enters the employer's premises or upon the means provided for access thereto, though the premises and such means of access are not wholly under the employer's control or management (Starr PianoCo. v. Industrial Acc. Com.,
At the time the accident occurred respondent Craig was traveling in a southerly direction upon Grove Street, after serving those customers of his employer whose places of business or residences abutted upon the easterly half of said street. The easterly property line of said Grove Street marked the westerly boundary of his district in so far as the physical act of delivering newspapers was concerned. Upon making delivery to the last and furthermost subscriber on Grove Street, respondent crossed from the east to the west side of said street, and was traveling homeward over the same course he had gone in his outward journey, which course led southerly past said employer's residence and also past the initial and other points *702 where packages of newspapers were left by the employer for distribution on the outgoing trip. The carrier had traveled about five blocks on the return trip, whereupon an automobile collided with his bicycle. As a result of the impact, the youth suffered a fracture of the right femur about four inches above the knee. The course taken upon his return trip was the one habitually traveled by him and it was the most practicable route for him to take. He was receiving a flat salary of $15 per month and his employment was confined to a fixed, definite area or district, the hours of his employment being from 4:45 A.M. to about 7 o'clock A.M. of each day. The papers designed for distribution within the district were divided into three separate packages or bundles and placed along the route by the employer at fixed stations, and so apportioned as to weight and number as to be convenient for distribution by said employee. As successive stations were reached the bundles left for distribution by the employer were taken in charge by the employee. The initial station of deposit was located within the district and a short distance from the southerly boundary line at a point on San Pablo Avenue between Sixteenth and Seventeenth Streets. This point marked the beginning and practically the end of the route required to be taken by respondent Craig in the discharge of his duties. The route and method of distribution were laid out by and were under the control and direction of the employer. Undoubtedly the employee was required to deliver newspapers in accordance with the instructions given him by his employer. No claim is made that respondent was guilty of loitering within the area of his employment or that he was guilty of wilful misconduct in any degree. The injury occurred after the carrier had thrown his last paper but before he had arrived at the initial point at which he received the first parcel or lot of newspapers and while he was yet within the exterior limits of the district to which he had been assigned. While it is a fact that there was no established office or headquarters at which the employee was required to report, it is a reasonable inference arising out of the nature of the employment and the circumstances disclosed by the record that the instructions essential for the proper performance of the service for which Craig was employed were left by *703 the employer and received by Craig at the stations where the parcels of papers were left for distribution, or at some point along the route of his travel.
It is the contention of petitioner that the facts of this case bring it within the rule generally known as the "going and coming rule." This 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.,
It is a further contention of petitioner that the injury was inflicted without the working district of the respondent and, therefore, is not compensable. This contention is predicated upon the theory that respondent Craig's district was limited by the center line of Grove Street and not by the street considered with reference to its entire width. There was no other way by which respondent could have returned to the initial point at which he entered without crossing to the westerly half of Grove Street. Had he attempted to return on the easterly side of said street he would have violated the traffic laws of the state and would thereby have subjected himself to arrest and imprisonment.
It would be a harsh and narrow construction of the act, indeed, that would deprive a person of his civil rights who, while acting in obedience to the law's mandate, is injured under the circumstances disclosed by the record in the instant case. As to this issue we think there is no substantial merit in petitioner's contention.
The award is affirmed.
Curtis, J., Shenk, J., Waste, C.J., Lawlor, J., and Richards, J., concurred. *705