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


Civ. 15096.

Decided: December 07, 1945

Syril S. Tipton, of Los Angeles, for petitioners. Everett A. Corten, of San Francisco, and E. Sarkisian, of Los Angeles, for respondents.

Petitioner seeks to annul an order of the Industrial Accident Commission on the ground that respondent Janda's (hereinafter referred to as applicant) injuries occurred during his uncompensated lunch hour.

The essential facts are:

On January 25, 1945, applicant was in the employ of petitioner Lockheed Aircraft Corporation (hereinafter referred to as Lockheed), which operated a plant at Seventh and Santa Fe Avenue in Los Angeles known as plant No. 2 and another plant in Maywood, County of Los Angeles, California, known as plant No. 4. Applicant's duties required him to travel either on his own motorcycle or in a car furnished by Lockheed between the two plants. Permissible routes of travel between the two plants had been discussed by applicant and his supervisor and several alternative routes had been designated as acceptable to Lockheed. One route permitted applicant to travel west on Slauson Avenue to Alameda Street, north on Alameda to Seventh, then east to plant No. 4.

Applicant's regular working hours were from 4 p.m. to 12:30 a.m. His lunch hour was from 8 p.m. to 8:30 p.m. Applicant was not paid during his lunch period and was permitted to eat his lunch along the way if enroute between the two plants. On January 25, 1945, shortly before 8 p.m., applicant started back to plant No. 2 from plant No. 4. It being his lunch period he decided that he would eat on his way back to plant No. 2. As he did not like any of the restaurants which were located along the route which he had used on the day in question to go to plant No. 4, he decided to go on another route, also permissible, which would take him west on Slauson Avenue to Alameda Street and north on Alameda Street. Although there were several restaurants open for business along the line of travel none of them appealed to applicant and consequently he did not stop at any of them along the road between plant No. 4 and Alameda Street.

Applicant being unfamiliar with the intersection of Alameda Street and Slauson Avenue passed this intersection before he knew it, although it had been his intention to turn north at this point. He continued west on Slauson Avenue outside of his permissible route and territory until he arrived at Vermont Avenue at which point he realized he had passed Alameda Street. Still seeking for a good place to eat, applicant decided to continue to look for a place appealing to him. He turned north on Vermont Avenue instead of going back on Slauson Avenue to Alameda Street, a permissible route. When applicant reached Vernon and Vermont Avenues he still had not located a suitable eating place. This point was three and one-half miles outside of his territory, and approximately a mile north of Slauson Avenue. At this intersection applicant collided with a street car, receiving injuries as the result of the collision upon which the present application for compensation is predicated.

This is the sole question necessary for us to determine:

Did the injuries which applicant received occur while he was in the course of his employment?

This question must be answered in the negative and is governed by this rule:

An accident happening during an uncompensated lunch period occurs when the employee is outside the scope and course of his employment and is therefore noncompensable. (California C. I. Exch. v. I. A. C., 190 Cal. 433, 435 et seq., 213 P. 257; California Highway Comm. v. I. A. C., 61 Cal.App. 284, 289 et seq., 214 P. 658).

Applying the foregoing rule to the facts in the instant case, it is evident that applicant was injured at a time when he was seeking his lunch outside his permissible route of travel, and therefore not in the course of his employment, and thus the injuries did not result from his employment and therefore were noncompensable.

Tingey v. I. A. C., 22 Cal.2d 636, 140 P.2d 410, is inapplicable since it was conceded that the injury in such case arose out of and occurred in the course of the employment. The same distinction appears in Pacific Indemnity Company v. I. A. C., 202 Cal. 521, 261 P. 987, and Broecker v. Moxley, 136 Cal.App. 248, 28 P.2d 409.

For the foregoing reasons the order is annulled.

I dissent. The applicant was injured while in line of duty and his injuries are therefore compensable. He had been sent by the night supervisor from Plant 2 on Santa Fe Avenue in Los Angeles to Plant 4 in Maywood to deliver a gate pass to a company employee. He chose to return by way of Slauson and Alameda streets, one of his allowable routes. He traveled west along Slauson, intending to turn north at Alameda. He had never before been in that vicinity. Due to his negligence or his inability to read the street name he did not recognize the intersection of Alameda. Having thus failed to recognize Alameda street he did not realize his whereabouts until he arrived at Vermont Avenue, about three miles to the west. It cannot be said that his travel along Slauson from Alameda to Vermont was not within the course of his employment. Neither can it be said that traveling north on Vermont from Slauson Avenue put him outside of the course of his employment. His primary purpose at all times was to return to the Santa Fe Avenue plant. That he scanned the horizon for a restaurant in which to take his evening meal as he proceeded north on Vermont did not take him from the course of his employment. He was at all times immediately prior to the accident attempting to reach his employer's plant. To stop for dinner was a minor consideration. To return to the plant was his major and controlling business. It is not shown that he lost a second or traveled a yard in search of a restaurant. He did not at any time commence to eat or to dismount from his motorcycle for the purpose of eating. He veered from his course solely by reason of his lack of familiarity with Slauson Avenue in the vicinity of its intersection with Alameda Street. Such a mistake as failing to recognize a point on his route is no more to his discredit than would have been his failure to observe a step-off on a factory floor and thereby to receive injuries.

The rule applicable to the instant case is that ‘the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorizes him to do.’ Employers' Liability Assurance Corporation v. Industrial Accident Commission, 37 Cal.App.2d 567, 573, 99 P.2d 1089, 1092. The mistaken belief of an employee that he is in the path or on the route or in the place designated by his employer does not render his injuries noncompensable. The question to be determined is whether the employee was in good faith acting in the execution of his duties at the time he received his injuries. Pacific Indemnity Company v. Industrial Accident Commission, 202 Cal. 521, 261 P. 987. That the applicant in the present action was acting honestly and in good faith was a fact found by the commission. An adverse finding might have found support in the evidence, but the fact that he was acting in the course of his employment having been determined by the commission upon substantial evidence it is not within the province of this court to substitute its conclusion for that of the commission. Where an employee is engaged in a specific mission for the benefit of his employer and is negligent while in the pursuit of that mission the injuries thereby suffered do not become noncompensable. Broecker v. Moxley, 136 Cal.App. 248, 28 P.2d 409. And the employee is entitled to compensation after receiving injuries due to his own negligence while performing an act for his master even though at the same time he combines his own business with that of his employer. Ryan v. Farrell, 208 Cal. 200, 280 P. 945.

Applicant had been a unit in the world of industry and in the employ of Lockheed for almost five years. Having been injured while in the performance of his duties, in the course of his employment, compensation for his disability should be borne by industry. It should not be denied him on the hollow assertion that he was at the time of his collision with a street car in quest of a restaurant while the record discloses that he was at that time ‘heading for’ Plant 2.

McCOMB, Justice.

WILSON, J., concurs.

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