Industrial Commission v. Murphy , 50 Ohio App. 148 ( 1935 )

OPINION

By ROSS, J.

It is the contention of the Commission that the actual employment of the defendant in error did not commence until he arrived at the funeral home. We cannot so hold. It seems clear to us that there are many differences between the case under consideration and what is commonly styled a “coming and going case”, where the employee has a fixed time to appear at his employer’s place of business. Up to the time the employee reaches such place he is his own master, can choose his route, engage in such private enterprises as he sees fit, take as much time as is consistent with his reaching his place of employment at the stipulated time, start when and from where he chooses, and after he leaves his place of employment, go where he pleases, with no responsibility to advise his employer of his movements.

In the instant case it is perfectly apparent that 'immediately upon receiving the telephone call, it became the duty of the employee to go directly to his place of employment as rapidly and directly as he could. His private affairs from the moment that he was advised tnat he was wanted must be put aside. Any action upon his part inconsistent with such direct and immediate response to his employer’s call would have been proper occasion for his .discharge.

We conclude therefore that the defendant in error was injured during and by reason of his employment.

This case has had an interesting history. It was first tried by Hon. Stanley Matthews of the Court of Common Pleas,, and a verdict was instructed by the 'judge for the Commission. A motion for a new trial was filed and the court granted the motion. An opinion was written by Judge Matthews upon the granting of the motion, in which the pertinent authorities were reviewed at length. We agree with the reasoning and conclusion of the court.

For a full review of the authorities upon which we predicate our conclusion, we refer to the opinion of Judge Matthews.

This case was then retried by the late Hon. Thomas H. Darby. This judge overruled a motion for a new trial, evidently also agreeing with the conclusion of the opinion mentioned.

For the reasons stated, the judgment is affirmed.

HAMILTON, PJ, concurs.