JO ANNE SMITH, Petitioner, v. WORKMEN‘S COMPENSATION APPEALS BOARD, COUNTY OF VENTURA et al., Respondents.
L. A. No. 29568
In Bank. Supreme Court of California
Dec. 10, 1968.
69 Cal. 2d 814
Everett A. Corten, Edward A. Sarkisian, Sheldon M. Ziff, T. Groezinger, Loton Wells, G. K. Bogue and Arthur C. Jones, Jr., for Respondents.
Petitioner‘s husband, Charles Smith, worked as a social worker for Ventura County. In a one-car auto accident which occurred while he was en route from his home to his office at about 7:35 a.m. on December 27, 1965, Smith incurred injuries from which he subsequently died. Mrs. Smith filed this application for temporary disability, medical, and death benefits.
A referee appointed by the board heard the case and issued an opinion and order denying recovery. Petitioner filed a petition for reconsideration which the board denied. She then unsuccessfully sought review in the Court of Appeal. Although the report of the referee on the petition for reconsideration does discuss the case in somewhat greater detail, the orders of both the referee and the board state no more than that the injury did not arise out of the course of employment.
Under the well established going and coming rule, an employee does not pursue the course of his employment when he is on his way to or from work. (Zenith Nat. Ins. Co. v. Workmen‘s Comp. App. Bd. (1967) 66 Cal.2d 944, 946 [59 Cal.Rptr. 622, 428 P.2d 606].) In a number of cases we have established exceptions to this rule, such as those in which the employer defrayed the travel expenses (Kobe v. Industrial Acc. Com. (1950) 35 Cal.2d 33, 35 [215 P.2d 736]) and those in which the employee engaged in a special errand for his employer. (Zenith Nat. Ins. Co. v. Workmen‘s Comp. App. Bd., supra, 66 Cal.2d 944; Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 291 [38 Cal.Rptr. 352, 391 P.2d 832].) Petitioner contends that we should recognize another exception to the rule in the instant case: that at the time of the accident Smith was engaged in the course of his employment inasmuch as he was bringing his car to work as required by his employer.1 This contention raises questions of both fact and law.
We turn first to the factual issue. Although the board argues that substantial evidence supports the conclusion that Smith was not required to bring his car to work for use during the day, the record does not bear out this assertion. Indeed, the board rendered no finding to that effect; the board‘s interpretation of the going and coming rule would render any such finding unnecessary; the referee‘s report merely recited some of the evidence on this point. In any event, as we shall show, the evidence compelled the conclusion that Smith‘s employer required him to bring his car to work on the morning of December 27th.
Smith‘s immediate supervisor, Mrs. Blema Damitio, testified that every worker was required to furnish his own car, first, so that he could visit his clients on field days, and, second, so that he would be available to see clients in cases of emergency on regular office days. December 27th was one of Smith‘s regular office days. In addition, Mrs. Damitio stated that although four or five county cars were available if requested in advance by a worker whose car had broken down, Smith, to her knowledge, had never requested use of a county car.
Fowler proceeded to testify that he could not say without checking his records whether any county social workers had in fact used county cars during the month of December 1967, and that he knew little or nothing about the procedures of the county welfare department for obtaining a car. When confronted with Mrs. Damitio‘s testimony, Fowler indicated he thought it was not wholly correct. Asked to state the basis of his conclusion, he said, “Like I said, there is no shortage of vehicles. I can see no reason to limit a County employee to using their own cars. It isn‘t necessary.” Fowler also indicated he did not know the number of social workers employed by the Department of Social Welfare.
Fowler‘s testimony does not constitute substantial evidence that Smith was not required to provide his own car. Fowler had no idea of the content of the actual rules of the Department of Social Welfare; he could say no more than that there were “plenty” of cars; he presumed from this information that the department need not have required, and therefore did not require, social workers to furnish their own cars. Fowler‘s testimony presents no more than a conclusion. Fowler apparently did not know the number of cars available to the department, or the number of social workers who needed cars. Moreover, even assuming a surplus of cars, the department might nonetheless have required social workers to provide their own. Thus Fowler‘s garnered information could readily be reconciled with Mrs. Damitio‘s direct statements. In view of the board‘s failure to offer any basis for the conclusion that Mrs. Damitio misunderstood the department rules, her specific testimony on this question constitutes substantial evidence. The rather remote inferences suggested by Fowler do not. (Compare Borak v. H. E. Westerman Lbr. Co. (1953) 239 Minn. 327, 330 et seq. [58 N.W.2d 567].) Accordingly, the information provided by Fowler does not conflict with the testimony of Mrs. Damitio.
Mrs. Sheldon‘s own statement that it was “unlikely” that the department possessed sufficient cars to furnish all of its social workers with cars effectively forecloses the possibility that all social workers were entitled to the use of county cars. Further, Mrs. Sheldon referred only to the rules under which she worked, not to the rules applied to social workers in general. Accordingly, Mrs. Sheldon‘s testimony as to her supervisor‘s instructions in 1967 after the accident does not raise a conflict with Mrs. Damitio‘s testimony as to her requirements of Smith in 1965 before the accident.
Concluding, as we must, that the department required Smith to have his car available on the job on the morning of December 27th, we turn to the legal issue: whether this requirement brought the trip within the course of his employment. Respondent correctly notes that we have previously held that such an obligation does not necessarily mean that the trip comes within the course of employment. (Postal Tel. Cable Co. v. Industrial Acc. Com. (1934) 1 Cal.2d 730 [37 P.2d 441, 96 A.L.R. 460].) Accordingly, the viability of the board‘s order depends upon the continued vitality of Postal Telegraph.
In Postal Telegraph the company employed one Mr. Mahret as a motorcycle messenger and required him to furnish his own motorcycle. In a morning traffic collision while en route to work, Mahret suffered injury. The Industrial Accident Commission awarded compensation; following a hearing in this court we affirmed the award without dissent. On rehearing, however, as dissenting Justice Langdon explains, “Justices Thompson and Seawell, who participated in the original decision, were not present at oral argument . . . and hence [were] disqualified. . . .” (Id. at p. 735.) Justice Curtis was absent. Justice Spence of the District Court of Appeal, serving as a Justice of the Supreme Court pro tem., joined three of the four remaining Justices in reversing the decision and denying recovery. Justice Preston, speaking for the court,
Postal Telegraph did not lead to a long line of California decisions relying upon, or applying, the rule there stated.2 In the 34 years since Postal Telegraph only two California decisions, one in 1935 and one in 1941, depend upon its holding, and both of them were decided by the Industrial Accident Commission.3 In Langendorf United Bakeries, Inc. v. Industrial Acc. Com. (1935) 6 Cal.App.2d 46 [43 P.2d 1106], the court relied unnecessarily on Postal Telegraph, since in that case the employer did not require the injured employee to provide his own motor vehicle. On the other hand, in 1944, without mentioning our decision in Postal Telegraph, the Industrial Accident Commission awarded compensation to a boy injured while riding from his home on a bicycle to a point where he was to assist in the folding and sorting of papers and then to take the proper number of papers for his own bicycle deliveries. (Bell v. Industrial Acc. Com. (1944) 9 Cal. Comp. Cases 291.)
No case of ours since Postal Telegraph has reaffirmed, even by way of dictum, that holding. In Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236 [120 P.2d 650], we limited its effect by ruling that the going and coming rule did not apply to an injury incurred by an insurance agent when driving his own car from his home to his employer‘s office. In that case the agent performed duties in the field as well as at the office and “there was no requirement that he should first report to the office . . . .” (Id. at p. 243.) After a subsequent decade of silence on the problem, we cited Postal Telegraph in 1952 as an example of the going and coming rule, but in our description of the case and its ruling we pointedly omitted the fact that Mahret‘s employer had required Mahret to furnish his own motorcycle. (Fireman‘s Fund etc. Co. v. Industrial Acc. Com. (1952) 39 Cal.2d 529, 532 [247 P.2d 707].)
Postal Telegraph must be overruled because it does not recognize an important limitation upon the going and coming rule. That limitation arises from the principle that an
This condition to the exclusion finds illustration in the analogous holding that the rule succumbs in the instance of the special errand doctrine because the employee there “engage[s] upon a mission which incidentally or indirectly contribute[s] to the service and benefit of the employer.” (Italics added.) (Shell Oil Co. v. Industrial Acc. Com. (1962) 199 Cal.App.2d 426, 428 [18 Cal.Rptr. 540].)
Other exceptions to the rule exemplify the same proposition. Thus it does not apply to the case in which “the employer furnish[es] transportation to the worker, or compensate[s] him for travel time or defray[s] his travel expenses” (Zenith Nat. Ins. Co. v. Workmen‘s Comp. App. Bd., supra, 66 Cal.2d 944), because at such times the employment relationship has been resumed. The relationship resumes no less effectively when the employer requires that the employee engage in conduct, whether prior to the workday or after it, whether on the premises of that employer or away from them, that inures to the benefit of the employer. The employment relationship can hardly be severed during the performance of an act required by the employer for his own purposes and advantage.
In the instant case the employer clearly benefited from Smith‘s bringing the car to work. Indeed, an employer must be conclusively presumed to benefit from employee action reasonably directed towards the execution of the employer‘s orders or requirements. An employer cannot request or accept the benefit of an employee‘s services and concomitantly contend that he is not “performing service growing out of and incidental to his employment.”4
In the present case the employer instructed Smith to have his car available on the job every morning. In driving the car to and from work, Smith carried out this order in a reasonable and normal manner, acquiesced in by his employer. Accordingly, even though Smith‘s employment contract said nothing about the manner of his transit to the job, he nevertheless acted within the course of his employment in thus furnishing his own car.
Whether or not the department “controlled” Smith‘s actions while he drove to and from the job raises no material issue.6 No employer physically controls the actual driving of a car by an employee. Although an employer could conceivably fix the route taken by his employee, such restriction would neither terminate nor resume the relationship because the employer “controlled” the employee. If the department had
Accordingly, we find no support in principle for the result in Postal Telegraph. Moreover, the decisional foundations of Postal Telegraph have been eroded over the years; the precedents upon which it rested have largely lost their strength, and, indeed, as we shall show, the modern trend of the cases sanctions recovery in such a situation as this.
In support of Postal Telegraph we cited in the opinion 11 cases from a total of 10 states.8 Two of the cited cases, Inland Gas Corp. v. Frazier, supra, 246 Ky. 432, and Denver & R.G.W.R. Co. v. Industrial Com., supra, 72 Utah 199, do not support the conclusion reached in Postal Telegraph. In Inland Gas the employee had stopped overnight at his home while en route from one of the company‘s plants to another. His home lay at a point off the direct route between the two plants; the next morning the employee was killed in an automobile accident while returning to that direct route. The court denied recovery, holding that the detour from the direct route had been undertaken solely for the private purposes of the employee. Since the employer did not require the employee to provide the car at the job, Inland Gas fundamentally differs from Postal Telegraph and the case at hand. Similarly, in the Denver case the injured employee not only was not required to provide a car at work, but was not driving his own car when the accident occurred. The injured employee did ride in a truck driven by a fellow employee who was required to provide the vehicle to transport employees later in the day, but this factor raised issues quite unlike those in the instant case.
Of the remaining nine cases, four have either lost their vitality or have been tacitly overruled. In Louisiana the deci-
The cited case of Hartford Acc. & Indem. Co. v. Lodes, supra, 164 Okla. 51, relied on the proposition that an employee on his way to work did not pursue the course of employment unless he encountered some special danger incident to the means of approach to the place of work, or unless he undertook some substantial mission for his employer. Although the Oklahoma Supreme Court there held that the employee rendered no service to his employer by bringing his wagon to work (164 Okla. at p. 53), that court later held in Weatherbee Elec. Co. v. Duke (Okla. 1955) 294 P.2d 298, that a sufficient service was performed by an employee who brought to work a few tools, some his own and some his employer‘s, required for his job. In addition, Hartford relied heavily on another case cited in Postal Telegraph, Fidelity & Cas. Co. v. Industrial Com., supra, 79 Utah 189. Fidelity has clearly been overturned as the rule of decision in Utah; in Bailey v. Utah State Industrial Com. (1965) 16 Utah 2d 208 [398 P.2d 545], the Utah Supreme Court explicitly held that an employee was within the course of his employment in bringing his own vehicle to work as required by his employer. Bailey cited Fidelity as merely affirming the general going and coming rule, ignoring the fact that the employee in Fidelity had been required by his employer to bring his wagon and team to work.
Although only five of the original eleven citations now retain vitality, Postal Telegraph did represent the majority rule in 1934. Fourteen states had considered the problem of accidents relating to vehicles required for employment before Postal Telegraph. Of these, eleven denied recovery.9 Four
Since Postal Telegraph, however, the trend has been decidedly in favor of recovery, and Professor Larson regards this treatment as the better rule. (1 The Law of Workmen‘s Compensation, § 17.50.) Of the 10 states considering the question for the first time, or modifying their earlier position, seven disagreed with the result in Postal Telegraph.11 In two other states the earlier rule against recovery is now of doubtful vitality.12 Only three of the ten decisions since Postal Telegraph deny recovery for accidents related to motor vehicles required for employment. (Continental Turpentine & Rosin Corp. v. Palmer (Fla. 1961) 129 So.2d 409; In re Croxen, supra, 69 Idaho 391; McDonald v. Denison (1947) 51 N.M. 386 [185 P.2d 508].)
Although the 14 cases supporting Postal Telegraph all dealt with vehicles owned by an employee but required for employment by the employer, most involved facts which could be distinguished from the present case according to our rationale of “course of employment.” In seven of the cases the acci-
We conclude that the decisional basis of Postal Telegraph has been eroded, that the case does not represent the trend of authority, and that it must be overruled. Surely in this day of a highly motorized society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job. Smith‘s obligation reached out beyond the employer‘s premises, and, in driving his car to and from them, he did no more than fulfill the condition and requirement of his employment.
Traynor, C. J., Mosk, J., and Sullivan, J., concurred.
BURKE, J.—I dissent. On the factual issue the record does not compel the finding that the employer required the deceased employee to furnish his own car. Instead, the majority opinion has reweighed the evidence, attempting to reconcile the testimony which conflicts with the “conclusion” it announces, and has usurped the role of fact-finder contrary to fundamental rules governing the functions of this court.
As stated by the referee in his report to the Appeals Board on the petition for reconsideration in this case, “The witness Damitio had made a statement on . . . her deposition that the county did not make a county car available to the decedent. However, the witness Fowler contradicted this in part, and stated that there are plenty of cars but lots of times people use their own cars and are reimbursed therefor. . . .” Fowler further testified positively that “All field employees” who so desire “can drive a County vehicle,” and that a person who does not have his own vehicle “may still be hired as a County social worker as long as he . . . has a valid California operator‘s license.” Fowler also stated that Mrs. Damitio‘s remarks made in her deposition “would probably be their own version . . . of the way availability of the cars are because as far as my knowledge is concerned, there is no shortage of cars, be no reason . . . to limit a County employee to using their own cars. It isn‘t necessary.”
Additionally, although Mrs. Joan Sheldon, who took over the deceased‘s caseload, gave her testimony in July 1967, nothing whatever in the record warrants, let alone compels, the view that she was speaking solely of 1967 requirements when she declared that whether or not she used her own car for her field work was left “strictly” to her “own discretion.” Instead, Mrs. Sheldon was a co-employee with the decedent in the county‘s social welfare department. She testified that she knew decedent “Quite well,” and had conversations with him in the office concerning their work “just about every day in the week.” Mrs. Sheldon further testified that she had “never used a County car,” but instead had always used her own car as she preferred to do so; however, she knew county social welfare “workers that do use the County cars.” It is thus obvious that Mrs. Sheldon‘s testimony that the
On the legal issue, I am convinced that the rule established in Postal Telegraph (1934) 1 Cal.2d 730 [37 P.2d 441, 96 A.L.R. 460] and followed for 34 years is sound and would adhere to it. Accordingly, even if it had been found below that the employer required decedent to provide his own vehicle, compensation should be denied under the “going and coming” rule when, as here, the injuries were suffered by the employee while regularly en route to report in at his established office headquarters as required by his employment.1
I would affirm the decision of the Appeals Board.
McComb, J., and Schauer, J.,* concurred.
The petition of the respondent board for a rehearing was denied January 8, 1969. Schauer, J.,* sat in place of Peters, J., who did not participate. McComb, J., Burke, J. and Schauer, J.,* were of the opinion that the petition should be granted.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.