Moser v. Industrial Commission , 21 Utah 2d 51 ( 1968 )

CROCKETT, Chief Justice.

Gerald V. Moser seeks reversal of an order of the Industrial Commission denying his claim for workmen’s compensation for disability caused by burns suffered while he was attempting to start his truck, which he had leased to, and was employed as a driver for, defendant Commercial Carriers, Inc.

Defendant Commercial Carriers is in the business of transporting automobiles. It employs plaintiff as a truck driver. Under their arrangement, plaintiff owned the truck, but leased it to the company by an agreement which gives the latter the full right of possession, use and control of it.

On the night of September 8, 1965, the plaintiff, upon completion of a trip, checked in at the defendant’s Salt Lake terminal, learned of his assigned trip for the next day and drove the truck home and parked it on a lot nearby, as was permitted by his employer. The next morning he had difficulty in getting the truck started. He phoned the defendant’s manager who told him to check the truck for ignition and gas to try to correct the situation; and that if he couldn’t, help would be sent. In the course of carrying out these instructions, while pouring gasoline in the carburetor, it spilled on him, ignited, and caused the burns and disability for which he filed the instant claim for compensation.

There is a bothersome perplexity in the Commission’s finding and order. It correctly stated that “the only issue is whether the accident occurred within the scope of plaintiff’s employment.” But it made no finding on that issue. Instead of dealing with that issue squarely, the decision of the Commission appears to be based on these recitals :

(1) that the plaintiff was not on his way to the terminal when the accident occurred ; and

(2) that plaintiff’s work began when he reached the terminal and not when he left home; and the conclusion that the applicant was not an employee of Commercial Carriers, Inc., within the meaning of the workmen’s compensation act when the accident occurred.

Whether this failure to find directly on the critical issue stated above was done advisedly or by inadvertence, we do not know. The findings are defective in that regard. There can be no question but that the plaintiff was an employee of the defendant company when the accident occurred. However, rather than being diverted by that puzzle, in view of the fact that there is little or no dispute as to the essential facts, we think justice will best be served by proceeding to consider the question which ultimately must be determined anyway: whether under those facts the accidental injury to the plaintiff should be deemed to have arisen out of or within the scope of his employment.¹

In seeking the answer to that problem, it is appropriate to focus attention upon the factual situation and plaintiff’s relationship thereto, just as it existed at the time of his injury. Before doing so, we first observe that this case is quite different and therefore distinguishable from the usual case of “going to or coming from work,” which we recognize as not within the scope of employment.²

The first important fact to be noted is the status of the truck. Inasmuch as under the lease the truck was committed to being used in defendant’s business with the full right of possession and control, the effect as related to the issue here is the same as if the truck belonged to the company, and it makes no difference who the owner was. Though it was parked in a lot near the plaintiff’s home, in order to continue its function in the defendant’s business, it was necessary that someone take it down to the defendant’s terminal. This would have to be done by someone who was furthering its business and thus in its service. The plaintiff’s duty to drive the truck includes those things reasonably incidental to keeping it running and drivable.³

Coupled with the above are the further significant facts that the problem of the truck stalling had been reported to the manager; and that he had given directions to the plaintiff who was in the process of carrying them out when he was injured. We are not losing sight of nor ignoring the fact that bringing the truck to the defendant’s terminal also provided plaintiff with transportation to work. But where an employee is engaged in activities in carrying on the work of his employer, he is within the scope of his employment and the mere fact that he may also derive some benefit himself does not exclude him from coverage.⁴

Closely related in principle is our recently decided case of Bailey v. Industrial Commission.⁵ We held that the deceased employee (self-employer) who was driving to work in a station wagon used in his service-station business was performing a substantial service required by the business and that his fatal accident occurred in the course of his employment.⁶

It is our opinion that the only reasonable conclusion to be arrived at in this case is that plaintiff’s injuries were sustained in the course of his employment, and that he should he awarded workmen’s compensation therefor.⁷ It is so ordered. Costs to plaintiff.

CALLISTER and TUCKETT, JJ., concur.

1 . See See. 36-1-45, U.C.A.1953.

2 . Bailey v. Utah State Ind. Comm., 16 Utah 2d 208, 398 P.2d 545; O’Brien v. First Camden Nat. Bank & Trust Co., 37 N.J. 158, 179 A.2d 740.

3 . See Stakonis v. United Advertising Co., 110 Conn. 384, 148 A. 334, 82 A.L.R. 1252; 99 C.J.S. Workmen’s Compensation pp. 718, 719.

4 . See Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454, and cases cited; also 58 Am.Jur. 744.

5 . Footnote 2 above.

6 . We quoted with approval Davis v. Bjorenson, 229 Iowa 7, 293 N.W. 829 (1940), which held that where it was the employee’s duty to take his automobile to the employer’s shop for the use in the business, he was within the scope of his employment; see also Borak v. H. E. Westerman Lbr. Co., 239 Minn. 327, 58 N.W.2d 567 (1953); Knowles v. North Dakota Workmen’s Comp. Bur. (1925) 52 N.D. 563, 203 N.W. 895.

7 . That the workmen’s compensation act should be liberally applied in favor of coverage of the employee in order to effectuate its purposes, see M & K Corp. v. Ind. Comm.. 112 Utah 488, 189 P. 2d 132; Powers v. Ind. Comm., 19 Utah 2d 140, 427 P.2d 740; Wilson v. Sears, Roebuck Co., 14 Utah 2d 360, 384 P.2d 400; Askren v. Ind. Comm., 15 Utah 2d 275, 391 P.2d 302.