264 P. 514 | Cal. Ct. App. | 1928
William D. Casey, an employee of the L.D. MacLean Company in San Francisco for more than twenty years, died on May 31, 1927, as a result of injuries sustained by him six days prior to his death. His surviving widow, Annie Casey, thereafter applied to the Industrial Accident Commission for compensation and was granted an award which the petitioner herein, as the insurance carrier for said company, seeks by this proceeding incertiorari to have annulled. The sole question presented for determination is whether, contrary to the finding of said Commission, the nature of the service the decedent was performing at the time he was injured was such as to bring the case within the operation of the so-called "going and coming" doctrine, which in effect declares that injuries sustained by an employee while going to or returning from his work are not compensable under the provisions of the Workmen's Compensation Act (27 Cal. Jur. 380).
As stated, the decedent had been working for said company for many years, and for some time immediately preceding his death filled the position of outside salesman, his duties being to call on customers, take orders, and sell goods; and he was required to report each morning for duty at the company's store on Sutter Street. On May 25, 1927, before leaving the store at the end of his day's work he was instructed by one of the company's executives to return to the store that night, after he had finished his dinner at *199 home, for the purpose of unlocking the door and admitting an electrician who would be there to repair a broken switch; to remain on the premises until the work was finished, and then to see that the store was locked. In accordance with his usual custom the decedent left the store on the day mentioned about 5 o'clock, went to his home on Eighth Avenue, San Francisco, ate his dinner, and, pursuant to the instructions of his employer, returned to the store, unlocked the door, allowed the electrician to enter and remained there from 7 o'clock until 10, at which time the electrician finished his work and departed. The decedent then locked the store and boarded a street-car to go home. On the way home, and while transferring from one car to another, he slipped and fell on the street or curb, cutting his eye and chin. Believing that his injuries were not serious, he went to work the next day, but on the day following grew worse and consulted a doctor. The injuries rapidly developed into a case of erysipelas and on May 31, 1927, he died.
It is well settled, as petitioner contends, that ordinarily employees who suffer injuries while going to or returning from their place of work are excluded from the benefits of said act, for it is held that they are not at that time rendering a service growing out of or incidental to their employment (27 Cal. Jur. 380). But the foregoing rule is not absolute. It is subject to many exceptions. As said in Makins v. Industrial Acc. Com.,
[1] As the Commission held, the evidence here proves that this was not the ordinary case of an employee being injured while following his usual custom of going to or coming from the place where he works. On the contrary, it shows beyond doubt that decedent was injured while returning from a special errand which he was performing under the direction of his employer and which required him to leave his home at night, after regular working hours, and called for a service outside of his regular duties as salesman, the sole purpose of which was to help his employer in the latter's business; and it was because of the relationship of employer and employee that the one requested the service and the other rendered it. Manifestly, under such circumstances, it would be a harsh and indefensible rule which would withhold compensation for an injury received by an employee in the performance of such an errand. As pointed out in Ocean Accident Guarantee Co. v. Industrial Acc. Com.,
Obviously, the service decedent was performing on the night he was injured did not have its inception at the store upon his arrival there, nor did it end there immediately upon leaving. It began the instant he left his home on the *201
errand to go to the store for the purpose of allowing the electrical work to be done; and if, as has been held, the "going and coming" rule does not apply to an employee who has sustained an injury in performing a business errand for his employer whilegoing home (Sun Indemnity Co. v. Industrial Acc. Com.,
In support of its contention for the application of the "going and coming" rule petitioner has cited a number of decisions of the Industrial Accident Commission, which, however, were not reviewed by the courts; also a few cases from foreign jurisdictions. But the facts of the cases cited are materially different from those of the present one, because in those cases it was shown that the employees when injured were not engaged in the performance of any special errand under instructions from their employers, but were injured while on their way to or coming from their places of employment, where they intended to work or had worked overtime, after regular hours, in the performance of their regular duties. On account of these varying circumstances we do not deem those cases in point (Makins v. Industrial Acc.Com., supra).
For the reasons above stated we are of the opinion that the Commission was fully warranted in finding that the present case is not subject to the operation of the "going and coming" rule. The award is therefore affirmed.
Tyler, P.J., and Cashin, J., concurred. *202
An application by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 9, 1928.
All the Justices concurred.