*1 (cid:127) intestacy. given The construction the court will below purpose. achieves this my
In opinion the decree should be affirmed. Rehearing denied. F. In Bank. No. November
[S. 1934.] (a Corpora POSTAL TELEGRAPH CABLE COMPANY tion), Petitioner, v. INDUSTRIAL ACCIDENT COM MAHRET, Respondents. MISSION and CHAS RUDY R P. H. Smith and Smith, Smith, & Sanborn Southwell for Petitioner. Wisecarver Respondents. George Olshausen A. Corten and
Everett *2 Bacon, Ira C. Crutcher, Gibson, Edward E. Dunn & Leonard, Ivan A. Pemberton, Edmund D. Powers, B. E. Stanley Laumeister, Burbank, C. P. Schwab, Daniel W. Pills- Painter, Burke, H. Slaven, & John Bronson, Bronson Goldberg, Steinhart, Sutro, John J. bury, & Jesse H. Madison George Parker, Cooley, Greer, Wyckoff, & Crow- L. Gardner ley Supple, O’Connor, Fitzgerald Moran, Hadsell, Sweet, & & Myrick Ingalls Lamb, Redman, Bacon, & Alexander (cid:127)& & Scott, Neumiller & Ditz Gerald M. Des- Deering and mond on Behalf of Petitioner. as Amici Ctiriae application
PRESTON, J.This for certiorari must be appear sustained, as will from a consideration of the funda establishing mental limits set law the workmen’s com Deering’s pensation system Laws, pp. (Act 4749, Gen. seq.). et Company, Telegraph cor- a
Petitioner Postal Cable poration. Respondents are Industrial Accident Commis- employ Rudy Mahret, was sion and Chas. who employee was in- petitioner motorcycle messenger. a Said jured Geary collision at Street and Presidio in a traffic Francisco, August 1932, Avenue, going San while Street, along Geary Street, from home at 1728 his Anza place employment his at Van Ness Avenue Pine city. traveling motorcycle, He on his Street in said was riding in which a friend whom with side ear attachment was employment. place taking to he was his messengers, foot, employed three classes of Petitioner furnished, fueled, main- bicycle motorcycle. Mahret operated paid his own tained was com- pensation for services use of the his and for machine per week, being segrega- $30 there no approximately sum respective allowed to cover each of tion of the amounts these charge uniform a which items. He was furnished for against him. day made hours 6 cents a ITis M., 6 P. hour off for lunch. em- with an A. M. to garage motor- place house ployer no furnished cycle. The motorcycle messengers custom of the was to ride their garage machines to and' them from work and near-by either at their homes premises or on in whatsoever they manner Mahret desired. At the time he was special on no yet petitioner errand for he had place his employment reached where his duties were to begin. may fairly required inferred he furnish and maintain the in mes- for his use senger and, employer service stated, above maintained no facilities for storing duty. the car off when
Do these facts employee, act, entitle the under compensation injuries? for said 6 thereof Section (Deering’s Laws, Gen. supra, p. 2276) provides “Liability compensation for the provided by act, . . . shall . . . against exist injury by his sustained employees arising employ- out of and the course of the ment following ... those cases where conditions of compensation (2) concur Where, ... at the time of the injury, performing growing service out of *3 employment and incidental acting his is and within the employment.” course of his
Upon what can basis it be injury said that the here arising was one out of and the course of employment the occurring employee or “performing while the was service growing out of employment”? and incidental to his These must all present compensation: elements to authorize Enterprise Foundry Com., Co. v. Industrial 206 Cal. Acc. ; 562 Larson v. Com., Pac. Industrial Acc. [275 432] Pac. 744]; London G. & A. Co. v. Cal. Industrial [224 977]; Com., 190 Acc. Pac. C. I. California 257]; 190 Cal. Exch. v. Industrial Acc. p. 232; Compensation, Willis on Glass Workmen’s Work p. Compensation, men’s case of In the C. I. Exch. v. Industrial Acc. California page
Com., supra, at it is said: “There must be some the injury connection between and the employment other employment brought injured the mere fact that the than the injury. place of There party the must be some causal employment injury between connection employment, that, by there reason sense was an un exposure of party or additional usual to the danger (in kind or character of this an hazard and ease ordinary risk) injury.” street caused which employee
When duty off of em is the relation ployer employee suspended reattach is and does employee until true work. is resumes the master’s special this re-entry may occur under into service premises circumstances before reaches by contract, master, happen where, but can only this express implied, or such earlier relationship at attaches exception. examples time. pause give We need not of this any of Mahret require The contract here did not particular place of travel of service. means from Whether he transport used the himself place employment his home to his return, was Likewise, concern no to his under said contract. question of whether he stored machine at or near premises the master’s or stored it at home or near problem. false factor arrange The essence of the employee report ment said 8at A. with a M. motor cycle ready service; began place service at said at said time and not a place at and time when the en route from and, his home many as in instance, away place blocks from the of service. employee was on no errand for emplo3er
This traveling under no restrictions any kind as to mode of travel. only direction He could not deviate for the convenience his friend perform but could any also task for himself or for another at reaching time before place begin. his duties where were to holding overwhelming weight accord with the authority where principle is identical involved with that found in -the case. instant
Some of these cases are: Grathwohl Point, etc., v. Nassau Supp. Div. N. Y. affirmed 496], *4 Appeals, of 243 567 ; Court N. Y. N. Thompson E. [154 608] Co., v. Glen Hill Gravel La. 19 854 797]; So. [141 Fidelity & Com., Cas. Co. Utah, v. Industrial Acc. 79 189 ; (2d) Morey City Pac. Battle 229 v. Creek, [8 617] 650 N. 925, ; Mich. W. 38 A. L. R. [202 Johnson v. 1039] Com., Highway 125 State Me. 443 564]; Atl. Denver [134 & R. G. W. R. Com., Utah, Co. v. Industrial Acc. 72 199 512, 62 Pac. 1436]; A. L. R. & Acc. [269 Ind. Co. Hartford 734
v. 361]; 164 Lodes, (2d) Okl. 51 Pac. v. Kneeland [22 Parker, 100 92 1396]; Vt. Atl. R. Inland A. L. [135 ; Gas Corp. Frazier, Ky. (2d) v. S. W. 26] Case, (Mass.) Chernick’s 800. N. E.
In successfully fact distinguished this ease cannot be from the case of Holopoff v. Industrial Acc. App. 554 (2d) only Pac. case to the con 649]. trary Maryland Casualty (Tex. Smith, App.) Co. Civ. v. (2d) S. W. 913. Counsel distinguishable assert that it is from the upon case at bar wording of the statute Texas, which provides: “injury That the words received employment” the course of shall include “all other every kind having and character with, originat do ing in work, trade, or profession business of the em ployer, received engaged while in or about the furtherance of the affairs or business of employer, upon employer’s whether premises or elsewhere”. See Indemnity Dinkins, American (Tex. Co. v. App.) Civ. 949; also, S. W. Surety (Tex. Federal v. Co. Civ. Eagle, App.) 25 (2d) S. W. 898. But we need not consider the strength of this claim altho recognized by it seems to be prefer Texas courts. We our upon to rest conclusion proper statute, construction our own steadied the fact using language that statutes the identical have of our own uniformly covering been char construed cases acter of this one. respondents’ admit
Again, to sustain claim would be to liability employer for the torts duty. question while off This identical was be- committed Supreme Washington in Court of the ease of fore the Co., 170 Western Union Tel. Wash. 600 v. Carroll it there held under all (2d) 49], and was circumstances respects identical with those of the instant case essential of law was not liable. a matter is annulled. The award J., Shenk, Spence, pro tern., J., J., con-
Waste, curred. J., Dissenting.
LANGDON, I dissent. ease has had In the proceeding checkered before the career. a somewhat Commission, compensation was awarded Accident Industrial *5 writ of application for a respondent employee. to An the First Appeal, District Court of by review was denied hearing opinion. A was District, One, Division without May 17, granted court, in this and our decision was rendered petition A 1934, affirming award, being filed. no dissent granted 15,-1934, rehearing on June for was nevertheless justices, opinion by now, signed and the court in an four Thompson Seawell, the award. who annuls Justices original present at participated decision, in the argument disqualified oral rehearing, and hence are participating present from in Curtis decision. Justice Spence absent. Justice Appeal is of the District Court of present justice at a of this pro is court tern., and necessary signature make majority opinion. this a On important therefore, case, this appears the latest decision largely by temporary influenced change and fortuitous justices qualified personnel pass upon of the it. original I am convinced that disposition of the cause adopt I proper, and my dissent, opinion the former reading of this as follows: court, petition by
“This is a to review an award Industrial Accident Commission. Mahret, Charles injured employee, messenger was hired as a boy, to deliver telegrams Telegraph for the Postal Company Cable at its at Pine street branch office and Van Ness in avenue San Francisco. He used a which he owned and himself. morning maintained On the accident, he driving to work the machine, by struck a injuries. sustaining car, street The commission found that of, course the accident occurred and arose out of the gave employment, its of compensation, award upon based weekly earnings $30. chiefly attacks award ground
“Petitioner on the that governed case is ‘coming and going rule’, that sustained an employee way on his returning work, work, compensable. are not Beeog- subject nizing that this rule is exceptions, as where the compelled particular employee is to use a method of trans- portation incident to his petitioner employment, contends exception that no such is established here. is said that company pays per a fixed rate message delivery bicycle thereof, employs foot, messengers, optional whether delivers that it is he with trans- message a on foot or uses mechanical methods portation. support
“The The testi- position. record does not mony clearly classes company hires all three shows messenger messengers, being but hired, that after placed assigned *6 classes, one the and is to office effectively Messengers where his can services be used. with- placed district; out are in machines offices in the business motorcycle messengers outlying assigned are to the more Thereafter, emergency, districts. the in absence of some messenger appear the equipped must in the to do the work assigned. place to which he is Mahret was a motor- hired as cycle messenger, required report and was each to for work day with his machine. “This fact alone not, would' take case out course, the e th coming going rule’. But the also estab record
lishes storage without conflict the fact that no facilities for by of the machines company, the afforded so that arrangements to garage Mahret was forced make own case, then, and maintenance. The is one where the nature employee’s compels the work him to drive to and machine, pushes with the unless work he it before him. injuries during Are driving compensable? received such they employee We think that are. The risks which to the subject employment, are result is of the situation essentially employer the same where is furnishes transportation compels the employee to make of it. use course, is, of well that in the ease, It settled latter employer transporta furnishes where and controls the compensable. received tion, (Rader are v. App. (2d) 129 Keeler, 360]; Cal. Pac. [18 Trussless Industrial Acc. App. Co. v. Cal. Roof Dominguez Pendola, (2d) ; v. App. Pac. 254] 1025]; Sylcox Co., v. National 225 Mo. Lead (2d) 497].) S. W. between “A distinction the instant those factual case and greatly by petitioner, which is stressed above, cited is cited decisions owned the means of in the transportation, employee while instant case the determining is But this distinction immaterial in owner. compensation. right right depends upon Where, employment. peculiar to the risk existence of a knowledge acquiescence express or directions, with use of make employee employer, compelled is in its risk involved a certain method transportation, it can employment, and use is one from the which results by the make owned no difference whether the vehicle is employer, it make employee party; nor can a third employer, the operated difference whether it was party. or a third directly point
“A v. Maryland Casualty case Co. Smith, (Tex. (2d) There the App.) 40 Civ. S. W. employee, required furnish hired to deliver parcels, was it, given place his own but was no store consequently keep had it He himself. way com- to work the court an award of affirmed suggests ter- pensation. Petitioner that differences minology Compensa- of the Texas and California Workmen’s may tion decision, statutes account for the but we are unable general language to see wherein the au- act, the Texas ‘ thorizing compensation engaged when the or about the furtherance of affairs or business of may is broader than employer’, that of our own. *7 opinion Maryland in Casualty that observed Com- pany upon case relies for its governing principles basic decision, Co., Minnesota Montgomery Novack & v. Ward 290], statutory language Minn. N. W. therein considered was the same as that found compensable is, injury act, California that must ‘in occur ‘ employment’ the course of must out arise of it’. “The Industrial Accident Commission of this state has approval previously indicated its exception ‘coming going rule’, employee even where the uses his (Hartford machine. & own Acc. Ind. v.Co. Industrial Acc. 162.) Com., 17 I. A. C. places great upon
“Petitioner reliance Holopoff case of Com., v. Industrial (2d) Acc. employee delivery boy There the was a using his own 649]. motorcycle, way and was on his to work. The com- compensation, mission denied and its decision was affirmed. The case bears some resemblance to the case, instant but full consideration we do upon not deem it conclusive. The with which the court point main was concerned was whether employee had regular deviated' from his route on the morning question on an errand for his or for private his purposes. appeared It that he had called on a friend to deliver something him. The that the court held deviation private was for a purpose, and the time that at employee acting not' employment. the course of his general The court’s ‘coming going statement of significant rule’ is not for nothing opinion appears in the suggest that compelled, by the nature of his employment, arrangements to make his own to store his machine. This seen, controlling element we have consideration in the case before us. We are satisfied conclusion of the commission that Mahret compensable were support finds record and in the law.
“The only question other is whether the commission prop erly compensation upon awarded gross based Mahret’s earn ings per $30 or whether week, it should have deducted therefrom of maintaining amounting the cost per statute, 12, $50 month. The b, section subdivision provides average weekly earnings that the shall not include any employer may pay sum which the to the ‘to any special expense cover him by entailed on the nature employment’. clear that Mahret seems any expenses. paid special sum as earnings His $30 week, per job required and the fact pay him to upkeep for the of a does not mean that his employer paid him cost upkeep ‘special of such ex language penses’. permit act does not such permits more than it deduction deductions for the cost fully developed or clothes. view is of tools in Spring v. Industrial Co. Ill. 408 Coal Min. field 859], where, A. L. R. under prac E. a statute N. own, supreme our tically with identical court of Illinois compelled coal miners were equip that where held them drilling machines, shovels, lamps, carbide, with powder, selves sledges wedges, and tool squibs, picks, supply boxes, fuse, *8 per rate ton paid at a certain of coal mined, it but were the cost of these improper to deduct articles from the to determine basis of a earnings compensation gross sure, decided to be conflict authority There award. opposite presented view is point. Richards Co., 184 N. W. Iowa, 1059]. v. Central Iowa Fuel opinion are of of liberal construction We rule compensation, statute, declared in our section favor 69a, necessarily interpretation leads made to the ’’ commission.
Rehearing denied. J., Thompson,
Langdon, J., rehearing. voted for a F. In Bank. No. 15050. November [S. 1934.] WILLIAM LANDSBOROUGH, Petitioner, v. EARL LEE
KELLY, as Director of Public Works, etc., al., et Respondents.