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District Court of Appeal, Second District, Division 2, California.


Civ. 13480.

Decided: April 25, 1942

Judd Downing and Richard L. Oliver, both of Los Angeles, for petitioner. Everett A. Corten and Dan Murphy, Jr., both of San Francisco, for respondents.

This is an original proceeding for a writ to effect the review of an award by respondent commission. The question for our determination is whether an employee who, after working hours, at her own expense, was riding homeward in an automobile of her employer from the latter's place of business, was acting in the course of her employment when injured by the collision of such automobile, so proceeding on the highway, with that of a stranger.

The applicant, Jane Duffus, was an employee in the office of Val Vita Food Products, Inc., in the city of Fullerton, some 33 miles from the city of Los Angeles. She and a number of her fellow employees resided in the latter city. For the convenience of them and of others similarly situated, in July, 1940, Val Vita purchased an automobile to be used by such employees as preferred to use it for the purpose of driving to and from their homes in Los Angeles to the Val Vita plant at Fullerton. For that accommodation the employer charged such employees as took advantage of the offer $4.00 per month. That sum was based upon a pro rata of the running expenses of the car and it was deducted from the pay checks of those who used the automobile. No employee was obligated to make use of such means of transportation but was at liberty to do so. A bus line was conveniently available to any of such employees. Since a driver was not supplied, it became the custom for the employees using the automobile to permit the passengers successively nearest the plant to disembark, each in his turn, leaving the car in the possession of him who lived farthest away to keep the automobile for the night. Upon the return to the plant on the following morning he who had sheltered the conveyance overnight gathered his fellow employees in the reverse order of their disembarkation into the car as he proceeded en route to Fullerton.

On April 18, 1941, three employees of Val Vita, including the applicant, started in the automobile for their several homes. On arriving at Wyverwood, east of Los Angeles, the first party was deposited near Sears, Roebuck & Company. As the car approached the intersection of 8th and Garland Street, it collided with another automobile resulting in certain injuries to Mrs. Duffus. At one point on the way, office mail of Val Vita was deposited. The driver carried along on the same journey some samples to be delivered to a salesman of Val Vita. But the applicant had no mission or errand to do for her employer during the time elapsing from her departure from the office until her arrival at her home.

At the hearing before respondent commission, petitioner as its insurer defended Val Vita against the application of Mrs. Duffus under the plea that such injuries as were sustained by appellant did not arise out of and occur in the course of the lady's employment within the meaning of the Workmen's Compensation Act. On October 24, 1941, findings and award in favor of the applicant were signed and filed whereby petitioner was held liable for her injuries and on the 10th of December, 1941, a rehearing of the matter was denied.

Petitioner now contends (1) that at the time of receiving her injuries applicant was not performing any service growing out of or incidental to her employment and was not acting within the course of her employment; (2) that the injuries sustained by applicant were not proximately caused by her employment. There is nothing in the contract of employment requiring the employer to furnish the applicant with transportation. There is no basis for the claim, and indeed none is made, that the applicant was under obligation to use the automobile as a means of reaching her home. The service was arranged solely as an accommodation for those employees accepting it at a modicum of cost. The employer could at any time have sold the car, thereby leaving the employees to choose other means of transportation without violating any obligation owed under its contract of hire. The labors of the applicant on the day of the accident terminated at 5 o'clock, after which the employer had no right to give her orders or to direct her behavior again until the assumption of her duties on the following day. Because there was no obligation on the part of the employer to furnish the applicant transportation, her case constitutes no exception to the coming and going rule. Where transportation is furnished as an integral part of the contract of employment to convey the employee to and from his place of work, the employer becomes liable for injuries received by the employee if he be injured while going or coming under such circumstances in the vehicle furnished by the employer. An injury arising under such circumstances occurs in the course of employment. Dominguez v. Pendola, 46 Cal.App. 220, 188 P. 1025; Trussless Roof Co. v. Industrial Acc. Comm., 119 Cal.App. 91, 6 P.2d 254; California Casualty Indemnity Exchange v. Industrial Acc. Comm., 190 Cal. 433, 436, 213 P. 257.

An employee on his way home from his place of work is not then rendering a service to his employer. As a rule his service begins only when he has returned and “proceeds to use some instrumentality provided, by means of which he immediately places himself in a position to perform his task.” California Casualty Indemnity Exchange v. Industrial Acc. Comm., supra, 190 Cal. at page 435, 213 P. at page 258. When an injury suffered by an employee cannot be fairly traced to his employment as a contributing proximate cause, it must be excluded from the exception to the coming and going rule. Moreover, in order to bring within the exception the peril which caused the injury to the employee while en route to his home, it must have been incidental to his very employment and not common to the vicinity in which he traveled. It cannot be wholly independent of the employee's obligation to his employer. Indemnity Insur. Co. of North America v. Hoague, 61 App.D.C. 173, 58 F.2d 1074, 1076.

The nearest approach to the facts of the instant case is found in an English decision, to wit, St. Helen's Colliery Co., Ltd., appellants, v. Hewitson, “Appeal Cases,” page 65. There the appellants contracted with a railway company to provide special trains for the conveyance of their workmen to and from the colliery. They agreed to indemnify the carrier against claims for damages in cases of accidents to workmen en route. They provided each workman with a pass and charged for it a sum less than the fare actually paid by appellants to the railroad company. This sum was deducted from the weekly earnings of each workman who took advantage of the convenience. At the time of his employment by the colliery each employee who chose such means of transportation, by writing, released the railroad from all claims in case of accident. The railway company had long been under contract with the colliery to provide special trains to convey the workmen to and from the colliery and Marysport at a monthly charge; by the same contract indemnifying the railway company against claims of the employees arising from their use of such transportation. The applicant, a coal hewer, was injured when the engine of his train “fouled the points and was derailed.” The rear van of the colliery trains carried the sign “Siddick Colliery Train.” The trains were timed to accommodate the several shifts. The tickets for riding the train were obtained at the colliery pay office and the amount charged each workman was deducted from his pay under the heading of “off takes.” He paid nothing to the railway company. Seventy–five per cent of those who traveled by the Siddick trains were miners in the colliery in which the applicant worked. If the applicant had had no train, he would have walked or obtained work nearer home. It was an advantage to him to go by the train at the weekly price charged him by the colliery. The court of appeal affirmed the award but, after an exhaustive consideration of the judgment by the House of Lords, it was pointed out that although his obtaining the pass was an inseparable part of his contract of employment, the employee was not directed to travel by such train; that he was at liberty to use any other means of travel; that the workmen were under no control of the employer at the time; neither was appellant bound to make use of the train nor upon leaving it to follow any directions furnished him by the employer. It was held that if the collier had been bound by his contract of employment to travel to the colliery by the train provided, he would then have been doing a thing he was bound to do by his contract. But the granting of a privilege to a collier to ride the railway without requiring him to do so did not impose upon the employee the duty to make use of the convenience supplied at a reduced fare. The House of Lords declared the test to be whether a workman was acting in the course of his employment at the time of receiving his injury, that is, engaged in doing something he was employed to do; something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of employment; that is, was the act being done at the time of receiving the injury in fulfillment of a duty to his employer? Under this test, it cannot be said that Mrs. Duffus is entitled to compensation for the reason that on the occasion of her ride in the automobile from Fullerton to Los Angeles she was not doing so in the performance of any duty arising out of her employment. She had the right to ride the automobile but she was under no obligation to do so. She was never employed to travel by any means to or from the factory or to any place at all.

It is therefore ordered that the award by respondent commission be and it is hereby annulled.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concurred.

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