TRUCK INS EXCHANGE v. INDUSTRIAL ACCIDENT COMMISSION (1945)

Petitioner seeks to annul an award of respondent Industrial Accident Commission whereby death benefits were awarded to the other respondents, the dependent widow and children of James Dollarhide. It is contended by petitioner that the evidence does not support the commission's finding that Mr. Dollarhide's death arose out of and in the course of his employment.

Petitioner is the insurance carrier for Elmore W. Peterson, who had employed Dollarhide as a ranch hand for about two weeks before the accident resulting in Dollarhide's death. Peterson owned four ranches each of which was several miles from the ranch known as the ‘home place,’ where decedent was working. On one of these ranches, known as the ‘Travers' ranch, decedent was living with his family. There was no stock or loose equipment at this ranch requiring the care of decedent, who had no duties whatever to perform there for his employer. On November 23, 1943, decedent finished his day's work at the ‘home place’ and drove his own car toward the ‘Travers' ranch. The employer paid no part of the expenses or upkeep of the car or for any part of the gasoline or oil. Although several routes were available decedent took the most direct route and was killed in a collision at a dangerous crossing, where other persons had been killed. Decedent intended to return home and then go with his wife to town to purchase kerosene for his own use.

It is conceded that in general, under the ‘going and coming’ rule, an award may not be given an employee who after finishing his work has left the premises of his employer and is returning to his home. To this rule there is an exception known as the ‘Bunkhouse’ rule, and respondents contend that the facts of the present case bring it within this exception. Under the ‘Bunkhouse’ rule if an employee is required to live or board on the premises of his employer either by the terms of his contract of employment or by the necessity of the work an injury received while on the premises may be compensable, although the employee is not at work at the time of the injury. Larson v. Industrial Accident Comm., 193 Cal. 406, 224 P. 744; Union Oil Co. v. Industrial Accident Comm., 211 Cal. 398, 295 P. 513; Employers' Liability Assur. Corporation v. Industrial Accident Comm., 37 Cal.App.2d 567, 99 P.2d 1089.

Of the cases which have been cited in the briefs the one most like the present one appears to be Associated Oil Co. v. Industrial Accident Comm., 191 Cal. 557, 217 P. 744. In that case the employer conducted a rooming-house for its employees at its plant, which was at a distance of about a mile and one-half from the town of Fellows. After the employee had finished his day's work he went to the rooming-house, and it being a hot day, seated himself on the edge of the porch. The porch railing broke and he was injured. The employee testified that there was ‘no other place to stay at, only the Associated Oil Company's place. It ain't a matter of choice. Unless you want to walk a matter of a mile and a half in the hot sun at 115 or 120, you got to stay there.’ The court annulled the award, holding that the employee was not injured when he was at work and was not required to live on the premises, he having the choice of going to the town of Fellows but preferring quarters provided for his convenience by his employer. The court said that ‘the test is whether or not the workman is given a choice in the matter and is free as possible to come or go as he pleases.’

Respondent commission relies upon the testimony of the employer in which he stated that ‘the only way in which you can get a man to work for you is to pay them and give them a house too.’ He further testified that he did not require decedent to live in the house provided, and added, ‘but I usually have a house for them to live in.’ He stated that he preferred that the employee live in the house furnished and that he figured that was part of the wages, ‘but they don't have to.’ This testimony is not sufficient to comply with the requirements of the ‘Bunkhouse’ rule. The use of automobiles has become almost universal and it appears from the evidence in this case that decedent was intending to drive to town to purchase kerosene. The improved and additional highways make it much more convenient for employees to live at some distance from the places of their employment. In the present case there is no evidence that decedent was required to live on the premises of his employer; and the accident took place not on the premises of his employer but on a public highway and after his day's work had been completed. We are satisfied that the evidence does not support the finding that the accident in which Mr. Dollarhide met his death arose out of and in the course of his employment.

The award is annulled.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.