Postal Telegraph Cable Co. v. Industrial Accident Commission , 1 Cal. 2d 730 ( 1934 )

LANGDON, J., Dissenting.

I dissent. This ease has had a somewhat checkered career. In the proceeding before the Industrial Accident Commission, compensation was awarded to the respondent employee. An application for a writ of review was denied by the District Court of Appeal, First District, Division One, without opinion. A hearing was granted in this court, and our decision was rendered May 17, 1934, affirming the award, no dissent being filed. A petition for rehearing was nevertheless granted on June 15,-1934, and the court now, in an opinion signed by four justices, annuls the award. Justices Thompson and Seawell, who participated in the original decision, were not present at the oral argument on rehearing, and hence are disqualified from participating in the present decision. Justice Curtis is absent. Justice Spence of the District Court of Appeal is at present a justice of this court pro tern., and his signature is necessary to make this a majority opinion. On this important case, therefore, the latest decision appears to be influenced largely by the temporary and fortuitous change in the personnel of the justices qualified to pass upon it.

I am convinced that the original disposition of the cause was proper, and I adopt as my dissent, the former opinion of this court, reading as follows:

“This is a petition by an employer to review an award of the Industrial Accident Commission. Charles Mahret, the injured employee, was hired as a messenger boy, to deliver telegrams for the Postal Telegraph Cable Company at its branch office at Pine street and Van Ness avenue in San Francisco. He used a motorcycle, which he owned and maintained himself. On the morning of the accident, he was driving to work in the machine, and was struck by a street car, sustaining injuries. The commission found that the accident occurred in the course of, and arose out of the employment, and gave its award of compensation, based upon weekly earnings of $30.

“Petitioner attacks the award chiefly on the ground that the case is governed by the ‘coming and going rule’, that is, that injuries sustained by an employee on his way to work, or returning from work, are not compensable. Beeognizing that this rule is subject to exceptions, as where the employee is compelled to use a particular method of transportation as incident to his employment, petitioner contends that no such exception is established here. It is said that the company pays a fixed rate per message for delivery thereof, and employs foot, bicycle and motorcycle messengers, and that it is optional with the employee whether he delivers a message on foot or uses the mechanical methods of transportation.

“The record does not support this position. The testimony clearly shows that the company hires all three classes of messengers, but that after being hired, a messenger is placed in one of the classes, and is assigned to an office where his services can be effectively used. Messengers without machines are placed in offices in the business district; motorcycle messengers are assigned to the more outlying districts. Thereafter, in the absence of some emergency, the messenger must appear equipped to do the work in the place to which he is assigned. Mahret was hired as a motorcycle messenger, and was required to report for work each day with his machine.

“This fact alone would' not, of course, take the case out of the coming and going rule’. But the record also establishes without conflict the fact that no facilities for storage of the machines were afforded by the company, so that Mahret was forced to make his own arrangements for garage and maintenance. The case, then, is one where the nature of the employee’s work compels him to drive to and from work with the machine, unless he pushes it before him. Are injuries received during such driving compensable? We think that they are. The risks to which the employee is subject are a result of the employment, and the situation is essentially the same as where the employer furnishes transportation and compels the employee to make use of it. It is, of course, well settled that in the latter ease, that is, where the employer furnishes and controls the transportation, the injuries received are compensable. (Rader v. Keeler, 129 Cal. App. 114 [18 Pac. (2d) 360]; Trussless Roof Co. v. Industrial Acc. Com., 119 Cal. App. 91 [6 Pac. (2d) 254] ; Dominguez v. Pendola, 46 Cal. App. 220 [188 Pac. 1025]; Sylcox v. National Lead Co., 225 Mo. App. 543 [38 S. W. (2d) 497].)

“A factual distinction between the instant case and those cited above, which is greatly stressed by petitioner, is that in the cited decisions the employer owned the means of transportation, while in the instant case the employee was the owner. But this distinction is immaterial in determining the right to compensation. This right depends upon the existence of a risk peculiar to the employment. Where, by express directions, or with the knowledge and acquiescence of the employer, the employee is compelled to make use of a certain method of transportation, the risk involved in its use is one which results from the employment, and it can make no difference whether the vehicle is owned by the employer, the employee or a third party; nor can it make any difference whether it was operated by the employer, the employee or a third party.

“A case directly in point is Maryland Casualty Co. v. Smith, (Tex. Civ. App.) 40 S. W. (2d) 913. There the employee, hired to deliver parcels, was required to furnish his own motorcycle, but was given no place to store it, and consequently had to keep it himself. He was injured on his way to work and the court affirmed an award of compensation. Petitioner suggests that differences in the terminology of the Texas and California Workmen’s Compensation statutes may account for the decision, but we are unable to see wherein the general language of the Texas act, authorizing compensation when the employee is ‘ engaged in or about the furtherance of the affairs or business of the employer’, is broader than that of our own. It may be observed that the opinion in the Maryland Casualty Company case relies for its basic governing principles upon a Minnesota decision, Novack v. Montgomery Ward & Co., 158 Minn. 495 [198 N. W. 290], and the statutory language therein considered was the same as that found in the California act, that is, compensable injury must occur ‘in the course of employment’ and must ‘ arise out of it’.

“The Industrial Accident Commission of this state has previously indicated its approval of this exception to the ‘ coming and going rule’, even where the employee uses his own machine. (Hartford Acc. & Ind. Co. v. Industrial Acc. Com., 17 I. A. C. 162.)

“Petitioner places great reliance upon the case of Holopoff v. Industrial Acc. Com., 131 Cal. App. 554 [21 Pac. (2d) 649]. There the employee was a delivery boy using his own motorcycle, and was injured on his way to work. The commission denied compensation, and its decision was affirmed. The case bears some resemblance to the instant case, but upon full consideration we do not deem it conclusive. The main point with which the court was concerned was whether the employee had deviated' from his regular route on the morning in question on an errand for his employer or for his private purposes. It appeared that he had called on a friend to deliver something to him. The court held that the deviation was for a private purpose, and that at the time the employee was not' acting in the course of his employment. The court’s general statement of the ‘coming and going rule’ is not significant for nothing appears in the opinion to suggest that the employee was compelled, by the nature of his employment, to make his own arrangements to store his machine. This element is, as we have seen, the controlling consideration in the case before us. We are satisfied that the conclusion of the commission that the injuries of Mahret were compensable finds support in the record and in the law.

“The only other question is whether the commission properly awarded compensation based upon Mahret’s gross earnings of $30 per week, or whether it should have deducted therefrom the cost of maintaining the motorcycle, amounting to $50 per month. The statute, section 12, subdivision b, provides that the average weekly earnings shall not include any sum which the employer may pay to the employee ‘to cover any special expense entailed on him by the nature of his employment’. It seems clear that Mahret was not paid any sum as special expenses. His earnings were $30 per week, and the fact that his job required him to pay for the upkeep of a motorcycle does not mean that his employer paid him the cost of such upkeep as ‘special expenses’. The language of the act does not permit such deduction any more than it permits deductions for the cost of tools or clothes. This view is fully developed in Springfield Coal Min. Co. v. Industrial Com., 291 Ill. 408 [126 N. E. 133, 22 A. L. R. 859], where, under a statute practically identical with our own, the supreme court of Illinois held that where coal miners were compelled to equip themselves with drilling machines, shovels, lamps, carbide, powder, fuse, squibs, picks, wedges, sledges and tool and supply boxes, but were paid at a certain rate per ton of coal mined, it was improper to deduct the cost of these articles from the gross earnings to determine the basis of a compensation award. There is, to be sure, a decided conflict of authority on this point. The opposite view is presented in Richards v. Central Iowa Fuel Co., 184 Iowa, 1378 [166 N. W. 1059]. We are of the opinion that the rule of liberal construction in favor of compensation, declared in our statute, section 69a, necessarily leads to the interpretation made by the commission. ’ ’

Rehearing denied.

Langdon, J., and Thompson, J., voted for a rehearing.