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District Court of Appeal, Second District, Division 3, California.

LEONARD VAN STELLE, INC., a corporation; and London Assurance Group, a corporation, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California; Lorene I. Hartman, Respondents.

Civ. 26723.

Decided: December 28, 1962

McCartney, Ryan, Trout & Dally, Los Angeles, Wallace Trau, Lancaster, for petitioners. Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, for respondents.

We have for review an award of the Industrial Accident Commission in favor of Lorene I. Hartman against London Assurance Group, insurers of Leonard Van Stelle, Inc., the employer of the claimant, for injuries sustained in an automobile accident. The evidence was received by Referee Higbee and after the decease of Mr. Higbee was considered under stipulation by Referee Rothfarb, who found that the injuries sustained by Mrs. Hartman did not arise out of and in the course of her employment. It was ordered that the applicant take nothing by reason of her claim. Applicant filed a petition for reconsideration; the referee recommended denial of the petition but the petition was granted and the matter was reconsidered upon the facts stated in the referee's memorandum decision, the order granting the petition stating that the question was one of law. The salient facts were the following. Mrs. Hartman, a licensed real estate saleswoman, having previously worked for Van Stelle, Inc. of San Diego, was reemployed by the latter. On June 10, 1960, she commenced work at the Point Loma office. Her compensation was upon a commission basis. A Mr. Leonard had furnished the firm a brochure of a ranch property he owned in the Lucerne Valley. On December 24th the Leonard property was discussed and since the Van Stelle office was not to be open on December 26th it was arranged that Mrs. Hartman would visit the property. She left San Diego December 24th intending to visit friends, the Steilers, in San Bernardino. Learning that the Steilers had house guests, Mrs. Hartman engaged a room at the California Hotel in San Bernardino for the nights of December 24th, 25th and 26th. At a party on Christmas day Mrs. Hartman met a man named Kirkus, a landscape architect, residing in Riverside. Learning that he had some acquaintance with property in Lucerne Valley Mrs. Hartman asked him to accompany her to the Leonard property, which he agreed to do. They left San Bernardino about 2 p. m. December 26th and traveled to the property, which they inspected. They went in Mrs. Hartman's car, which Kirkus drove. They spent a good deal of time at the ranch during which applicant had two highballs and Kirkus partook of two or three. At about 8 p. m. they started to return and reached Riverside at about 9:30 or 10 p. m. They went to a place called ‘The Office’ where applicant had a bottle of beer and Kirkus had two highballs. They had not dined since about noon and they went to two restaurants in Riverside, both of which were closed. They made no further effort to locate a place where they could dine. Mr. Kirkus suggested that he knew of a place in Corona some 19 miles distant where they could obtain a meal. They went to Corona in Mrs. Hartman's car, Kirkus driving. The place Kirkus had selected was a bowling alley and restaurant. Sandwiches were the only food available. Kirkus declined to eat but had a highball instead. On the way back to Riverside Kirkus lost control of the car, came into collision with a tree and Mrs. Hartman was injured.

The sole question was whether at the time of injury the employee was performing services growing out of and incidental to her employment and was acting within the course of her employment. (Labo-Code § 3600(b).)

As authority for its decision the Commission relied upon its holding in Groschup v. Trojan Steel, Inc., 61 L.A. 227–608: ‘In our view, employees whose work entails travel away from the employer's premises are within the course of their employment continuously during the trip except when there is a distinct departure on a personal errand not contemplated by the employment.’ In applying this rule the Commission stated: ‘The applicant's search for a restaurant on a holiday night, after being without food almost twelve hours, was not such a departure, and was an errand contemplated by the employment.’ The reasoning of the Commission was stated as follows: ‘However, we are of the opinion that the applicant, while on the trip to San Bernardino from her San Diego office, falls into the category of a commercial traveler, and that the applicable rule is, therefore, broader than a mere question of going and coming.’ We are unable to agree with this reasoning. Applicant was paying her own expenses on the trip and was not being compensated for the time spent. Her day's work was done when she had returned Mr. Kirkus to Riverside. She had no further use for his services. Her day would have been complete when she returned to her hotel in San Bernardino. There was no evidence that she could not have obtained a meal in Riverside or San Bernardino without going out of her way. Upon her return from Lucerne Valley her only reason for passing through San Bernardino was to return Kirkus to Riverside. Her reasonable and natural course would have been to obtain dinner and leave Kirkus in Riverside. There was no necessity for doing anything else. It was not reasonably to be expected that in order to satisfy the whim of some companion she would embark upon a round trip upon the highway of 38 miles in order to dine at a particular place, when other eating establishments were close at hand. The trip to Corona was entirely unnecessary. She did not undertake it of her own choice, and while she had a right to defer to the wishes of her companion, the choice was one that was purely personal, for which she and not her employer should bear the responsibility. There was nothing whatever in this excursion that was associated with or incidental to the business of the employer. It was an unnecessary risk. We are of the opinion that if the award were permitted to stand it would establish an unfortunate precedent. If an employee, after the day's work is done, except for the partaking of an evening meal, may engage in a midnight excursion on the highway of 38 miles in order to satisfy the desires of a companion to have a meal at a particular place, and at the risk of his employer, the course of employment would no longer be limited to activities that were reasonably to be anticipated, but would embrace all manner of departures from the service of the employer for reasons purely personal to the employee.

The award is annulled.

SHINN, Presiding Justice.

FORD and FILES, JJ., concur.