ASSOCIATED INDEMNITY CORPORATION v. INDUSTRIAL ACCIDENT COMMISSION

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

ASSOCIATED INDEMNITY CORPORATION v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 11453

Decided: September 16, 1940

Purvis, Jakobsen & Kennedy, of San Francisco, for Petitioner. Everett A. Corten, of San Francisco, for Respondent.

Petitioner seeks annulment of an award of compensation to an employee of its insured employer upon the ground that the injuries to the employee did not arise out of or occur in the course of this employment.

The facts are not in dispute. The employer, Parr Richmond Terminal Corporation, was operating a warehouse and dock on San Francisco bay in which operations the employee served as dock superintendent. The place of employment was so located that all employees had to walk over a footpath for a distance of about half a mile. No other means of approach was provided or available. The employees customarily drove their cars or rode to a parking area provided for that purpose and then walked the remaining distance over this footpath. On the morning of the injury the superintendent rode to this parking place, called at the Southern Pacific freight office and picked up some freight shipment documents at the request of his employer, and then proceeded along the footpath to his place of employment. He approached a freight engine which was switching in the yards of the railroad company and which he found was about to proceed in the direction of the warehouse for a distance of about 400 yards to blow the boilers. At this point there is some conflict in the evidence as to whether he asked and received permission to ride on the tender, or whether he boarded without the knowledge or consent of the engineer. The conflict is immaterial as none of the railway employees had power to give such consent. As the engine proceeded the superintendent stood on the step of the engine or tender and, when the engineer shot off a blast of steam to blow his boilers, the superintendent either fell or jumped from the step and broke his leg. The superintendent arrived at the parking area at about 7:30 a.m. He was due at the plant at 8 a.m. The injury occurred at 7:40 a.m.

In this statement it should be noted that the only means of transportation to the place of employment was to walk over the footpath from the parking area; that the freight engine did not run to the plant, and had no accommodations for passengers; that, in seeking a ride on this engine, the employee was a trespasser engaged in a private and personal diversion which in no manner contributed to the benefit of his employer; and that he had about twenty minutes to walk about half a mile over the footpath to his place of employment, and hence did not choose the diversion because of necessity or interest in his employment.

The rule applicable to a case of this character is correctly stated in 27 California Jurisprudence, page 390, as follows: “When a workman, for his own convenience, chooses a hazardous means of entering or leaving his employer's premises—one not customarily used by employees in his particular class, and no agreement to furnish or permission to use such means of access or exit being shown on the part of the employer—he deliberately assumes a risk which cannot be said to have been in the contemplation of the parties when the contract of employment was made, and an accident happening under such circumstances is foreign to the employment and may not be said to have arisen out of or in the course thereof.”

The respondents in presenting their case place special emphasis on Stumar v. Industrial Accident Commission, 16 Cal.App.2d 429, 431, 60 P.2d 557, 558, and since they insist that that case is on “all fours” with this, an examination of that decision will be helpful. The employee was the chief camera man for a motion picture company. He flew his own plane to a new location to inspect it and was killed in landing. It was optional with Stumar whether he should use his own transportation in going to location or transportation furnished by his employer. In holding that the employee was entitled to compensation the District Court of Appeal emphasized this right to use his own discretion as to means of transportation. But the meat of the decision is in the statement reading: “Indeed it might be well argued that he was showing industry and diligence in taking advantage of the daylight on Saturday afternoon to make the inspection while the superintendent of construction was still there. By using his airplane he could arrive at the location in time to afford more time for inspection than by using an automobile. * Nor can the claim be defeated on the suggested theory that it was not shown that the employer had acquiesced in the use of Stumar's airplane. Stumar was vested with and required to use initiative and discretion in the performance of his duties. The exercise of initiative and discretion is inconsistent with the requirement of prior acquiescence.” The decision is in full harmony with the rule that, where no definite instructions as to means of transportation by the employer, and no general custom is present, any reasonable effort of the employee to meet the situation is within the scope of the Compensation Act, St.1917, p. 831.

The distinction between these cases and the instant case is apparent. Here the only safe and reasonable means of transportation from the parking area to the place of employment was to walk over the footpath provided for that purpose. This was the means used by all employees, and the superintendent was not given the discretion to use any other. His voluntary diversion from this course by taking a ride on the switch engine was neither safe nor reasonable, and was not an act showing either “industry” or “diligence” in the interest or service of his employer. The undisputed evidence shows that the employee “for his own convenience” chose a hazardous and unreasonable means of transportation to his place of employment—one not customarily used by other employees, one not contemplated by his contract of employment, and one not used in the interest or service of his employer.

The award is annulled.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.