HINOJOSA v. WORKMEN COMPENSATION APPEALS BOARD (1971)

Petitioner seeks annulment of the decision after reconsideration by the Workmen's Compensation Appeals Board, which held that by reason of the going and coming rule the injury to petitioner was non-compensable.

The case involves the single question of whether petitioner, a Mexican farm laborer, was ‘. . . performing service growing out of and incidental to his employment and . . . acting within the course of his employment’ (Labor Code, § 3600) at the occasion of his injury, which occurred while he was on his way home from work.

The facts are relatively simple and are not in dispute. The employer, W. W. Wiest, operated seven or eight individual noncontiguous ranches. Prior to the accident petitioner had worked as a farm laborer on the various properties for approximately four weeks. His work included thinning peaches, plums and apricots and picking like crops at the various ranches. Upon concluding work at one of the Wiest fields, the foreman would direct the petitioner and other workers to another of the fields. He was paid $1.75 per hour and worked nine to nine and one-half hours per day, six days a week. He was paid from the time he arrived on the job until he departed for home, including the time spent in transit between fields.

The workers, including petitioner, had to provide their own transportation, typically private automobiles, to and from work and between fields.

Petitioner did not own his own automobile. He had arranged with a fellow worker, one Raphael Rodriquez, who did own his automobile, to take him to and from work and, when required, to transport him between fields, for a payment of $3.00 per week.

On June 8, 1970, the day of the accident, petitioner worked at the Airport Ranch from 7:00 A.M. until 4:00 P.M., when the day's work was concluded. He left the field in the Rodriquez vehicle and was directly enroute to his residence when the car was involved in a collision with another vehicle, as a result of which petitioner sustained the injury for which he seeks workmen's compensation benefits in these proceedings.

Petitioner had worked at the Airport Ranch on June 7, 1970, the day before the accident, and had the accident not occurred, would have returned to that ranch the day following the collision.

At the time of the injury petitioner was not involved in the performance of any service for his employer, he was not receiving any wages after having left the employer's field, and his employer had never reimbursed or agreed to reimburse either petitioner or Rodriquez for any of their costs of transportation to and from work or between the fields.

Because there is no real factual conflict, the determination we must make is one of law (Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349, 358, 294 P.2d 713; Rausch v. Workmen's Comp. App. Bd. (1969) 274 Cal.App.2d 357, 358, 79 Cal.Rptr. 148).

‘It is the general rule that injuries sustained by an employee going to or returning from work are not compensable under the Workmen's Compensation Act. The rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. [Citation.]’ (Kobe v. Industrial Acc. Com. (1950) 35 Cal.2d 33, 35, 215 P.2d 736, 737.)

‘Whether deemed a suspension of the employment relationship of a cessation of service to the employer, the situation is one in which the employee steps out of the course of his employment for the off-duty period, and injuries during such a period, in the absence of special arrangements with the employer, fall under the ban of the ‘going and coming’ rule.' (2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, § 9.03[3][b], p. 9–34.)

In contrast to the compexity of the application of the rule under multifarious factual settings, the apparent simplicity of the rule is misleading. The courts have recognized many continually expending exceptions to the rule. Petitioner herein relies upon three of those exceptions: (1) The special mission or errand exception; (2) the unlimited territory or hours of work exception; and (3) the exception recognized in Smith v. Workmen's Comp. App. Bd (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365, where the employee is required to furnish transportation to perform his job.

The facts here do not come within the special mission concept. That principle applies when an employee is performing an errand or special mission at the employer's request, even though he may be outside his regular working hours and off the employer's premises (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 38 Cal.Rptr. 352, 391 P.2d 832, 2 Witkin, Summary of Cal.Law, § 60, p. 1703). As explicated in Arboleda v. Workmen's Comp. App. Bd. (1967) 253 Cal.App.2d 481, 484, 61 Cal.Rptr. 505, 507:

‘To be a ‘special service’ to the employer the making of a trip by the employee to the employer's premises must amount to something more than merely going there to make his routine services available at the time and place of his scheduled work assignment. [Citations.]'

There was no evidence whatsoever that petitioner herein was doing anything other than going home after having made his services available during the hours of his regular work day and he clearly was not within the recognized dimensions of this exception.

Nor does the unlimited territory or hours of work exception apply. Petitioner has attempted to expand this exception by arguing that it is applicable whenever the employee does not report for work each day at the same place. A review of the cases which have applied this exception demonstrates that more is required than that the employee may report to different places on different days to commence the work of the day. The exception most typically involves a traveling salesman or a commercial traveler who has been held to be in the course of his employment during the entire time he is on a trip, day or night (Leonard Van Stelle, Inc. v. Industrial Acc. Com. (1963) 59 Cal.2d 836, 31 Cal.Rptr. 467, 382 P.2d 587; Wiseman v. Industrial Acc. Com. (1956) 46 Cal.2d 570, 297 P.2d 649), or others who are on duty 24 hours a day (Goodrich v. Industrial Acc. Com. (1943) 22 Cal.2d 604, 140 P.2d 405 (drilling superintendent on call 24 hours a day, who was killed while traveling home to inform his wife he would be on duty all night); State Emp. Retirement System v. Industrial Acc. Com. (1950) 97 Cal.App.2d 380, 217 P.2d 992 (game warden on duty 24 hours a day died of carbon monoxide while asleep in his car); Le Febvre v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 386, 71 Cal.Rptr. 703, 445 P.2d 319 (volunteer fireman, who could be called to fight fires at any time and at any place within the district, killed while on his way to an evening fire drill)).

Petitioner places prime reliance on the Le Febvre case, supra, but we believe his reliance is misplaced. In stating that the volunteer fireman therein involved had no regular or normal place of employment, it does not appear that the court was relying on his going to one fire station or another for fire drills; but rather, that the court was relying upon the fact that the fireman could be called at any time and ordered to report to any place within the district to fight fires and that he had no fixed hours of employment. The court stated, at page 388, 71 Cal.Rptr. at page 705, 445 P.2d at page 321:

‘As a volunteer fireman whose duties were to respond to calls to fight fires at any location within the entire district and to attend evening drills and meetings twice each month at such locations as might be designated from time to time Le Febvre's employment cannot be viewed as having a regular headquarters or office where he was regularly required to report in order to perform his duties or before setting out on his assigned tasks. Instead, from the moment he left his home, or any other point from which he might have been summoned to engage in firefighting or in training drills in the district, he was acting within the scope of his employment by the volunteer fire department. Accordingly, the fact that he met his death while traveling on the public highway en route to an evening drill does not bring the going and coming rule into play.’

Furthermore, Le Febvre's trip for an evening fire drill at the specific request of the district clearly would have brought him within the special mission exception to the going and coming rule (Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d 289, 38 Cal.Rptr. 352, 391 P.2d 832).

Petitioner's third contention is not so easily resolved. It deals with the necessity for the petitioner to make his own arrangements for transportation between ranches, should the occasion have arisen where the work on one ranch was completed before the day ended and he had to get to another ranch to finish the day. The record does not reveal how often this may have happened.

It is clear that if petitioner is paid during the period of travel to and from work (Kobe v. Industrial Acc. Com., supra, 35 Cal.2d 33, 215 P.2d 736) or if the employer furnishes transportation to the employee (Cal. Cas. Indem. Exch. v. Industrial Acc. Com. (1942) 21 Cal.2d 461, 132 P.2d 815) or makes any payment to the employee to compensate him for costs of traveling to and from work (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd. (1967) 66 Cal.2d 944, 59 Cal.Rptr. 622, 428 P.2d 606), the employee is not excluded from coverage by reason of the going and coming rule.

As petitioner herein was being paid his regular wage during the intervals of time when he was being transported between ranches, had the accident occurred while enroute between ranches he would have been covered.

Petitioner places principal reliance upon Smith v. Workmen's Comp. App. Bd., supra, 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365. In that case the Supreme Court annulled a decision of the Workmen's Compensation Appeals Board denying death benefits to the widow of a deceased employee. The employee works as a social worker for Ventura County. He was enroute from his home to his office, prior to the commencement of the day's work, when the accident occurred. He received no compensation for the time he was traveling and was not reimbursed for traveling expenses. The court specifically found that the employer required the employee to bring his automobile to work so that he could perform the responsibilities of his job which, among other duties, involved the use of his car to visit his clients on field days and having his automobile available to go see clients in case of emergency on regular office days. Our Supreme Court in its four to three decision advises:

‘. . . an employee ‘is performing service growing out of and incidental to his employment’ (Lab.Code, § 3600) when he engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer. Suspension of the employment relation and consequent noncoverage of the employee is incompatible with performance of service required by the employer. Hence the employer's requirement that the worker furnish a vehicle of transportation on the job curtails the application of the going and coming exclusion.

‘. . .

‘. . . The relationship resumes no less effectively when the employer requires that the employee engage in conduct, whether prior to the workday or after it, whether on the premises of that employer or away from them, that inures to the benefit of the employer. The employment relationship can hardly be severed during the performance of an act required by the employer for his own purposes and advantage.

‘In the instant case the employer clearly benefited from Smith's bringing the car to work. Indeed, an employer must be conclusively presumed to benefit from employee action reasonably directed towards the execution of the employer's orders or requirements. An employer cannot request or accept the benefit of an employee's services and concomitantly contend that he is not ‘performing service growing out of and incidental to his employment.’' (Fn. omitted.) (At pp. 819–820, 73 Cal.Rptr. at p. 257, 447 P.2d at p. 369.)

It is apparent that a literal application of these broadly stated principles would result in total obliteration of the rule itself. In a very real sense, an employee who, without more, gets to and from work ‘engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer.’ Perhaps it is too obvious to require stating that the employee must arrive at work before he can benefit his employer with his services. Thus, every employer is benefited by his employees' arriving safely at work and getting home safely. Yet in a factual setting where, without more, the employee going to or coming from work, the Supreme Court has continued to recognize the existence of the rule, so we cannot assume that the broad statement of principle in the Smith case was intended to extinguish the going and coming rule. As the court indicated in Arboleda v. Workmen's Comp. App. Bd., supra, 253 Cal.App.2d 481, 484, 61 Cal.Rptr. 505, making oneself available at a time and place of a routine work assignment does not constitute an exception to the going and coming rule.

Further, the Smith case must be viewed in light of the facts then being considered. It is elementary that a principle stated in a decision is not to be considered in a vacuum but must be interpreted in the light of the factual situation then before the court (Gerhardt v. Fresno Medical Group (1963) 217 Cal.App.2d 353, 357, 31 Cal.Rptr. 633).

There are facts which distinguish the case at bench from the Smith case. In Smith it was expressly found that the employer had specifically requested the employee to bring his automobile to work in order to perform the duties of his position. Here the employee was not required nor requested to have his car at work to perform the duties or his position. In contrast to Smith, the employee herein in fact did not bring his car to work, but he paid a fellow employee to take him to and from work and between ranches in the same manner as an employee might pay for public transportation to accomplish the same purpose. To hold on these facts that petitioner is excepted from the going and coming rule would bring within the pale of compensation coverage many thousands of clerical and other workers whose employment may require them to perform services at several employer selected locations and who regularly travel to and from work and between locations while at work by public or other privately arranged for transportation. We do not believe the court in Smith intended that an employee be covered by workmen's compensation while going to or coming from work outside his regular hours of employment merely because he is required to pay a third party for transportation between jobsites while on the job. In our opinion, this would require an unjustified extension of the holding in Smith and would be equivalent to the elimination of the going and coming rule itself—the exceptions in fact having devoured the rule (Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d 289, 291, 38 Cal.Rptr. 352, 391 P.2d 832).

We are not unmindful of the mandate of Labor Code, section 3202, requiring that the provisions of the Workmen's Compensation Act be ‘liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment’ (Garzoli v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 502, 505, 86 Cal.Rptr. 1, 3, 467 P.2d 833, 834). That section eventually may be construed by our Supreme Court to extirpate the going and coming rule in its entirety. However, as the Supreme Court has not seen fit to totally abolish the rule to date, but in its most recent pronouncements continues to cite it as a viable and existing concept (Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670, 87 Cal.Rptr. 193, 470 P.2d 1; Garzoli v. Workmen's Comp. App. Bd., supra, 2 Cal.3d 502, 86 Cal.Rptr. 1, 467 P.2d 833), we do not think that this intermediate appellate court should effectually abrogate the going and coming rule by holding the petitioner under the facts in the case at bench to be covered.

The order is affirmed.

I dissent. Petitioner's employer could have arranged, at substantial expense to himself, to have his employees meet at a central location and then could have provided the transportation necessary to accommodate the working demands of the particular work day. He did not, however, elect to do so. Instead the employment conditions which he imposed upon his employees made it essential for petitioner to provide himself with some form of automotive transportation; petitioner did not know on a day by day basis in which of his employer's fields he would be working or for how long, and he not only had to have some form of automotive transportation to go to and from work, but he also had to have some form of transportation to travel from one field to another during the work day itself. Consequently, the transportation contract petitioner entered into with his fellow-employee, Rodriquez, was reasonably directed to the fulfillment of his employer's requirements, and by necessity inured to the employer's benefit. Clearly, it curtailed the application of the going and coming exclusion under the rationale of Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365. As our Supreme Court said at pages 819–820 of that opinion, 73 Cal.Rptr. at page 257, 447 P.2d at page 369:

‘. . . an employee ‘is performing service growing out of and incidental to his employment’ (Lab.Code, § 3600) when he engages in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer. Suspension of the employment relation and consequent noncoverage of the employee is incompatible with performance of service required by the employer. Hence the employer's requirement that the worker furnish a vehicle of transportation on the job curtails the application of the going and coming exclusion.

‘. . .

‘. . . The relationship resumes no less effectively when the employer requires that the employee engage in conduct, whether prior to the workday or after it, whether on the premises of that employer or away from them, that inures to the benefit of the employer. The employment relationship can hardly be severed during the performance of an act required by the employer for his own purposes and advantage.’

The majority opinion distinguishes the instant case from Smith by saying:

‘In Smith it was expressly found that the employer had specifically requested the employee to bring his automobile to work in order to perform the duties of his position. Here the employee was not required nor requested to have his car at work to perform the duties of his position. In contrast to Smith, the employee herein in fact did not bring his car to work, but he paid a fellow employee to take him to and from work and between ranches in the same manner as an employee might pay for public transportation to accomplish the same purpose.’

It may be true that petitioner was not requested specifically by his employer to bring his automobile to work; nevertheless, he had to have some form of automotive transportation to perform his duties; the requirement that he have an automobile or some other form of transportation was implicit in the employment relationship. If the instant case is in fact distinguishable from Smith, it is because petitioner did not bring his own automobile to work but, instead, to meet his employer's transportation requirements, entered into a contract with his fellow employee, Rodriquez, who drove his automobile. Applying the rationale of this distinction, it would follow that Rodriquez would not be a affected by the going and coming rule and would be entitled to workmen's compensation benefits while petitioner, who was a companion in the same automobile for the same reason and perhaps could not afford his own vehicle, would be precluded from coverage. Such a result is untenable.

The main opinion also implies that the extension of the Smith rationale to the facts of this case could lead to the extirpation of the going and coming exclusion. The exclusion is predicated on the theory that when an employee is on his was to or from work he does not pursue the course of his employment. (Zenith National Insurance Co. v. Workmen's Comp. App. Bd., 66 Cal.2d 944, 946, 59 Cal.Rptr. 622, 428 P.2d 606.) But under the mandate of Labor Code, section 3202, the going and coming rule must be narrowly construed and has no application in a case where in furnishing his own transportation the employee subserves some peculiar interest of the employer other than getting to and from the employer's place of business. As I see it, the question is not whether we should emasculate the going and coming rule further, but whether it has any application at all in this case.

The case of Begley v. International Terminal Operating Co., 114 N.J.Super. 537, 543, 277 A.2d 422, 426, expounds the enlightened viewpoint. In that case the decedent was employed as a pier superintendent and was killed in an automobile accident shortly after he left his place of employment to return to his home. Because decedent's duties necessitated his traveling frequently from place to place within the terminal area in the course of a day's work, and because of the substantial distances between the places where he worked, it was established practice for him to use his own car for such travel. In holding that his widow was entitled to compensation benefits, the New Jersey Union County Court reasoned as follows:

‘Her right to compensation rests upon the principle that whenever an employee, because of contract, necessity, express permission or established accepted practice, uses his car regularly or frequently in connection with his employment and for the employer's benefit, he is within the scope of his employment when transporting the car to and from the place of employment in order to have it available for such use. . . .’

I would annul the decision of the Workmen's Compensation Appeals Board denying reconsideration and remand the cause for further proceedings.

GEO. A. BROWN, Associate Justice.

FRANSON, J.*, concurs.