KOBE v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA (1949)

On August 8, 1947, an automobile owned and driven by Alfred Bjerke, in which Nelson O. Ruble, Augustine Padilla, and Homer D. Van Zandt were passengers, was struck by a locomotive while enroute from San Bernardino to Pomona. At the time of the accident the four men were returning to their homes after completing the day's work in San Bernardino where they were employed by Federal Roofing and Siding Company in repairing the roof of the county courthouse. They were all injured in the accident and Ruble subsequently died from its effects. Applications for compensation benefits were duly filed with the Industrial Accident Commission. The four claims were consolidated for the purpose of hearings, and it was stipulated that all evidence introduced in any one of the cases might be used in the others insofar as material. Considerable evidence was taken and in October and November of 1948 findings and awards were made in favor of Bjerke, Padilla, and Ruble's surviving wife and minor child. A rehearing was denied in each case. By the present proceedings in certiorari petitioners seek to annul the awards on the ground that the commission's findings that the respective injuries arose out of and occurred in the course of the employment are not supported by the evidence.

Viewing the record most favorably to respondents, the following facts were before the commission: Meredith Bowdish, was the general supervisor for T. R. Kobe, doing business as Federal Roofing and Siding Company, with power to hire and set the wages of employees. On August 4, 1947, he employed Ruble and Alphonso Tafoya for the courthouse roof job and authorized them to hire additional labor. Ruble was the foreman on the job and Tafoya worked under him. It was agreed that the men would work nine hours a day and receive ten hours pay and that the extra hour would be for traveling time. Tafoya hired Bjerke and Van Zandt, stating to each that they would be paid one hour's driving time; and Padilla was hired by Ruble on the same terms. Wages were paid upon this agreed basis.

When Bjerke was hired he was asked if he minded taking ‘a couple of more guys' to work with him in his car. Bjerke said he did not mind. Nothing was said about paying him for driving others to the job. Tafoya told Van Zandt that a man would pick him up on August 5th and take him to work. This was done by Bjerke. On August 6th, at Padilla's request, Bjerke also picked him up at his home in West Pomona and took him to work. West Pomona is not on a direct route from Bjerke's residence to San Bernardino. Bjerke received no reimbursement for the cost of operating his car and nobody told him what route to take. Van Zandt and Padilla offered to share the cost of transportation but no specific amounts were agreed upon.

On August 7th, Ruble, who usually drove his own car to work, asked if he could ride with Bjerke the next day. Bjerke agreed. Van Zandt was instructed that on the following morning he was to drive a truck to work and bring a load of materials from Ruble's house. On the morning of August 8th, Bjerke picked up Padilla and then called at Ruble's residence. Certain tools and burlap sacks were placed in the trunk of Bjerke's car and the three men then drove on to work. Van Zandt arrived separately by truck as instructed. The four men left work at 4:30 p. m. that day in Bjerke's car. The collision with the locomotive occurred 10 or 15 minutes later while they were driving on the shortest route to Pomona.

It is well established that injuries received while going to and coming from work are not compensable. 27 Cal.Jur. see 84, p. 380. Like most general rules, the ‘going and coming’ rule is not of inevitable application, but in special circumstances is subject to exceptions. Familiar examples involve injuries received during special missions or service in extra hours, Western Pipe & Steel Co. v. Ind. Acc. Comm., 49 Cal.App.2d 108, 121 P.2d 35; Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245; accidents occurring within the ‘zone of employment,’ Smith v. Industrial Acc. Comm., 18 Cal.2d 843, 118 P.2d 6, or while on an errand reasonably necessary to comfort and convenience in the discharge of the work, Leffert v. Industrial Acc. Comm., 219 Cal. 710, 28 P.2d 911; and injuries suffered during the course of transportation furnished as an incident of the employment by, and under the control of, the employer. California Cas. Indem. Exch. v. Ind. Acc. Comm., 21 Cal.2d 461, 132 P.2d 815. The principle uniformly recognized by all of the cases is that an injury sustained while going to or coming from work is compensable only if at the time it occurs the employee is engaged in the employer's business within the contemplation of the employment agreement. Dellepiani v. Industrial Acc. Comm., 211 Cal. 430, 295 P. 826; Campbell, Workmen's Compensation, sec. 175, p. 166.

The commission seeks to justify the present awards as being within the scope of the ‘transportation exception.’ The contention is unsound. The requirements of the exception are twofold. In the first place, there must be an actual or constructive furnishing of transportation by the employer. Campbell, ibid., secs. 173, 180, pp. 160, 169, and cases cited. The transportation must be furnished as an incident of the contract of employment, and not as a mere matter of convenience or accommodation to the employee. Boggess v. Ind. Acc. Comm., 176 Cal. 534, 169 P. 75, L.R.A.1918F, 883; Rader v. Keeler, 129 Cal.App. 114, 18 P.2d 360. The basis of the requirement is that where the employer furnished transportation, it is a possible, although not a necessary, inference therefrom that he has impliedly agreed that service to him shall include the time spent traveling to and from work by the means of transport so provided; and it may fairly be said that injuries incurred while so traveling are in the course of the employment.

It is conceded that the means of transportation were not actually furnished by the employer in the present cases. In view of the evidence, the commission necessarily relies upon the proposition that the payment of an extra hour's wages at the regular rate as compensation for travel time, leaving the individual employees free to arrange their own transportation to and from the job, amounts to a constructive furnishing of transportation. The contention finds no support in principle or authority. The Supreme Court, in Smith v. Industrial Acc. Comm., 18 Cal.2d 843, 847, 118 P.2d 6, 8, stated, ‘[t]he payment to the employee of the cost of public transportation to and from his place of residence to the place of work does not ordinarily in itself, furnish a basis for concluding that an injury sustained during such transportation arose out of the course of employment. Trussless Roof Co. v. Ind. Acc. Comm., supra, [119 Cal.App. 91, 6 P.2d 254].’ Accord: Kerin v. Industrial Commission, 239 Wis. 617, 2 N.W.2d 223; Guenesa v. Ralph v. Rulon, Inc., 124 Pa.Super. 569, 189 A. 524; Public Service Co. v. Industrial Commission, 370 Ill. 334, 18 N.E.2d 914; Baumbach v. Industrial Commission of Ohio, 59 Ohio App. 101, 17 N.E.2d 389; Republic Underwriters v. Terrell, Tex.Civ.App., 126 S.W.2d 752; Orsinie v. Torrance, 96 Conn. 352, 113 A. 924. The rule enunciated in these cases has been repeatedly recognized and followed by the commission. Emmert v. Allen, 14 I.A.C. 57; London Guarantee & Acc. Co. v. Bini, 12 I.A.C. 178; Joe Samorano v. Grant Eyre, 11 I.A.C. 125; see also cases cited in 27 Cal.Jur., sec. 85, p. 385, and Campbell, op. cit., sec. 180, p. 169. The rule is common sense. For various reasons, an employer may find it expedient to pay additional compensation due to the distance of the place of work. The mere fact that an employer adds something to the wages of an employee who has to travel some distance to work in order to equalize his wages with those of employees who live within a convenient distance does not imply an agreement that the service of the employee commences when he leaves home and continues until he has returned. The principle is the same whether the amount added is one hour's pay or merely the amount of carfare or other expense of transportation. No legitimate inference as to the employer's agreement can logically be drawn from such payment, standing alone. An award of compensation cannot rest on surmise or conjecture. Children's Hosp. Soc. v. Indus. Acc. Comm., 22 Cal.App.2d 365, 71 P.2d 83.

Turning to the present record; we find a conclusive showing that the extent of the employer's undertaking was the payment of an extra hour's wages. The extra compensation was to be paid regardless of what means the men used to travel to work, and irrespective of the distance covered or the time consumed enroute. Tafoya testified without contradiction that he informed Bjerke that the men ‘could arrange to trade rides, or pay one another, however they saw fit, but that was up to them to find transportation the best way they could.’ Bjerke also testified that Tafoya ‘said they didn't have any transportation for us and if we could furnish our own it was swell. Other than that he didn't know how we were going to get there.’ There is nothing in evidence to support an inference that any different understanding was had with Ruble or Padilla when they were hired. Nor does the subsequent conduct of the parties afford a basis for a conclusion that the service continued to the time of the accident. Although on the morning of August 8, Van Zandt may have been within the protection of the act while driving the truckload of equipment to work, see Dauphine v. Ind. Acc. Comm., 57 Cal.App.2d 949,135 P.2d 644, it is highly questionable whether the status of employment attached at that time to Bjerke, Ruble, and Padilla merely because they were also taking to work with them some tools and burlap sacks for use on the job. See Eby v. Industrial Acc. Comm., 75 Cal.App. 280, 282, 242 P. 901. In any event, the special circumstances attending the trip to work on the day of the accident were absent on the homeward journey. They were not the usual course of events, and have no rational bearing upon the issue of the employment relationship existing at the time of the accident.

The commission relies heavily upon evidence showing that Kobe was a party to a Master Labor Agreement between the Los Angeles Union Roofing Contractors and the local Roofers' Union, under which he was obligated to pay travel time for a distance of more than 15 miles fom his Los Angeles place of business on out-of-town jobs to employees who traveled back and forth each day. In connection therewith, Charles E. Young, the union business representative, testified that the work contracted for by Kobe, which consisted of the removal of a gypsum fill, preparatory to laying a new roof, was within the jurisdiction of the union; Kobe paid travel time to other employees on other jobs; the union contract was in effect for the year ending August 15, 1947; any men hired by an employer who is a party to the union contract are entitled to the pay provided for therein; and it is common practice in the business to pay one hour's extra pay in lieu of travel time. Ruble was a member of the union but the others were not. Bowdish testified without contradiction, however, that he and Ruble had agreed that it was not in violation of the union contract to use non-union men up to the time of the actual laying of the roof, and Ruble had stated that he was not ‘running a union job.’ The record contains no evidence from which it could be inferred that the provisions of the Master Labor Agreement were intended, either expressly or impliedly, to govern or be incorporated in the terms of employment of Ruble, Bjerke or Padilla. The uncontradicted evidence is to the exact contrary. If the agreement is at all material it is so only insofar as it tends to indicate that it was customary for roofing contractors to pay additional compensation for travel time on out-of-town jobs. As such, it is merely cumulative and adds nothing to the effect of the evidence previously related. The implied finding of the commission that the employer furnished the transportation in the course of which the accident occurred is not supported by the evidence.

The cases upon which the commission relies do not require a contrary conclusion. In Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028, pursuant to a union contract providing that ‘Transportation * * * shall be furnished’ by the employer for out-of-town work, the sum of two dollars a day was agreed upon as travel expense and ‘was paid in lien of the employer's furnishing transportation.’ Page 472 of 330 U.S., page 804 of 67 S.Ct. In sustaining the award of compensation, the court expressly held that ‘there is more here than mere payment of transportation costs. It was found that Ticer's employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself.’ Page 482 of 330 U.S., page 809 of 67 S.Ct. In the present case, on the other hand, there is no evidence of any contract obligation of the employer to provide transportation. Breland v. Traylor Eng., etc., Co., 52 Cal.App.2d, 415, 126 P.2d 455, and Trussless Roof Co. v. Indus. Acc. Comm., 119 Cal.App. 91, 6 P.2d 254, are cases where the employer paid a specified sum per mile traveled, rather than a lump sum unrelated to the distance covered or expense involved. In neither case, however, in upholding findings that at the time of an auto accident on the highway the employees were in the course of their employment, did the court rely solely on the payment of travel expense. In the Breland case, the employee was sent from Pennsylvania to California on a special work assignment, at his employer's expense, and was paid all his living expenses while here plus five cents a mile for transportation to and from work. The court held that these special circumstances, together with the presumptions to be derived from the failure of the employer to produce any evidence at all on the issue of the relationship between it and the employee, were sufficient to support a finding that, while driving to work the employee was acting within the course and scope of his employment. In the Trussless Roof Co. case, where the employees were reimbursed on the basis of either six cents per mile or the cost of round trip trolley fares, there was evidence tending to show that a term of the contract of employment was that the employer would furnish transportation. In a few instances such transportation had actually been furnished by company trucks. The holdings in the two cases, apart from language unnecessary to the decisions therein, give no support to the commission's argument.

In the second place, in order to be within the exception, the means of transportation must be under the control of the employer. California Cas. Indem. Exch. v. Ind. Acc. Comm., supra, 21 Cal.2d 461, 132 P.2d 815; Dominguez v. Pendola, 46 Cal.App. 220, 188 P. 1025; Dellepiani v. Ind. Acc. Comm. supra, 211 Cal. 430, 295 P. 826; California Highway Comm. v. Industrial Acc. Comm., 61 Cal.App. 284, 214 P. 658; Rader v. Keeler, supra, 129 Cal.App. 114, 18 P.2d 360; Konopka v. Jackson County Road Comm., 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552; Phifer's Dependents v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147; 62 A.L.R. 1438; Campbell, ibid., sec. 180, p. 169, and cases cited. In the California Highway Commission case, the court pointed out the reason for this requirement—that when the employer has the instrumentality under his control, he may be held responsible for its safe condition and for the skill and care of the operator; ‘But when the employer does not own nor control the vehicle, does not even know that the employee will elect to use it, does not know whether it shall be driven by a reckless or a careful driver, or by a man who is intoxicated, or by one who is sober, how can it be either logical or just to hold him responsible for injuries occurring to the employee while riding to and from his work in such a vehicle?’ 61 Cal.App. 288–289, 214 P. 660; see also Dominguez v. Pendola, supra, 46 Cal.App. 220, 223, 188 P. 1025. The requirement recognizes that it would be wholly unreasonable, where control is lacking, to imply an agreement by the employer that the employment should continue during travel to and from the job, thereby exposing himself to extensive potential liability without the means of self-protection normally available to one with control over the means of transportation.

We cannot agree with the commission's contention that the cases of City and County of S. F. v. Ind. Acc. Comm., 61 Cal.App.2d 248, 142 P.2d 760, and Trussless Roof Co. v. Ind. Acc. Comm., 119 Cal.App. 91, 6 P.2d 254, have rejected the reasoning of the Highway Commission case or discarded the control requirement. In the former case, the employee was riding on a streetcar admittedly controlled and operated by his employer at the time of the injury, thus rendering discussion of the point unnecessary. In the course of its opinion, however, the court twice referred to the control requirement with evident approval. In the Trussless Roof Co. case, the court expressly held that ‘the situation was within his [the employer's] control, within the reason for the rule given in [California] Highway Comm. v. Industrial Acc. Comm., supra * * *.’ Page 95 of 119 Cal.App. page 255 of 6 P.2d. Insofar as the majority opinion in Cardillo v. Liberty Mut. Ins. Co., supra, 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028, which dealt with the District of Columbia Workmen's Compensation Act, is inconsistent with the cited decisions of our own courts, it cannot be deemed controlling.

The commission does not contend that the present evidence would support a finding that the employer had control over the means of transportation, nor do we think it could successfully so contend. It is clear from the record that Bjerke agreed to carry his fellow employees as a matter of personal accommodation to them. The discussion as to sharing of expenses demonstrates their common understanding that transportation to and from work was a matter for individual arrangement. Nothing in the record remotely tends to show that the employer had any right to inspect or repair the car used, select the driver, regulate the speed of travel, choose the route to be followed, or in any way govern the actions of the employees in the course of their travel to and from work. For this additional reason the awards in the present cases cannot stand.

In applying the ‘going and coming’ rule, and its various so-called exceptions, certain fundamental principles must be steadfastly kept in mind. It was not intended by the Workmen's Compensation Act to transform the employer into an insurer of his employees at all times. An award of compensation benefits must be supported by a concurrence of the statutory conditions; inter alia, it must be shown that, ‘at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment. * * * [and that] the injury is proximately caused by the employment * * *.’ Lab. Code, sec. 3600; see California C. I. Exch. v. Indus. Acc. Comm., 190 Cal. 433, 435, 213 P. 257. Where transportation to and from work is either actually or constructively furnished by the employer as an incident of the employment, and is under his control, it may fairly be said that a highway accident is one of the risks of the service, and that the statutory conditions to compensation are satisfied. Where these elements are lacking, however, and the employees are traveling according to their own arrangements and by whatever means are conveniently available, the opposite is true. The risk is no longer an industrial one, but is one shared at large with the commonalty, and hence not governed by the compensation law. In our opinion, the present cases are clearly within the latter category. We deem it appropriate to observe also that the rule of liberal construction enjoined upon the courts by section 3202 of the Labor Code applies only to the ‘provisions' of the Workmen's Compensation Act, and only for the purpose of extending its benefits to ‘persons injured in the course of their employment.’ It does not permit an unwarranted liability to be imposed upon an employer in the form of an award of unearned compensation based upon a ‘liberal’ interpretation of legally insufficient evidence.

The awards are annulled.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.