Burchfield v. Department of Labor & Industries ( 1931 )

In my opinion, appellant, at the time he was hurt, was on his own time, and the injuries suffered by him were not received in the course of his employment. It seems clear that appellant was not to be compensated for the time consumed in the journey from Longview to Vancouver. He received an amount equal to the bus fare between the two cities, but this was in no sense compensation for his time, but merely equalized to him the cost of transportation between the different places at which his services were required. It seems to me that the situation here is exactly the same as though appellant had been released from work at a dock in Vancouver, instead of Longview, and told to report back for work at a later hour, and he meanwhile went to his home, and was injured either while on his way home or while proceeding to the place at which he had been directed to report.

Appellant and his fellow workmen had finished one job. They were released from their employment at Longview. They were directed to report at Vancouver at a certain hour. Meanwhile, they were on their own time. They could go to Vancouver in any way they liked, as long as they arrived on schedule. Whether they dined at Kelso or Vancouver, whether they went home or to the theater, or how or at what hour they went to Vancouver, was immaterial. The master provided no physical means of transportation, nor did he give any directions concerning the same. He merely paid appellant an amount equal to the bus fare between the two cities. It is true that appellant was required to proceed to Vancouver, but this no more brings him within the course of his employment while going than he would have been had he simply gone home from the dock in Vancouver with instructions to return at some fixed hour. Appellant was compensated on an hourly basis. It is possible that, had he been paid by the week or the month, a different situation would be presented, but such is not the case.

The case of Hama Hama Logging Co. v. Department of Labor andIndustries, 157 Wn. 96, 288 P. 655, in so far as it is an authority upon the questions here presented, it seems to me supports the position taken by respondent. In that case, the injured workman was making the trip upon which he was injured "on his own time and for his own personal business or pleasure." For this reason, notwithstanding the fact he was on the master's premises and riding upon transportation furnished by the master, it was held that he was not within the purview of the workmen's compensation act.

In my opinion, the case of Hilding v. Department of Labor andIndustries, 162 Wn. 168, 298 P. 321, is not here controlling, as in that case it appeared that the injured workman was directed by his employer to go to the city of Spokane and there perform certain duties, after accomplishing which he was to return to the place of his usual employment. The deceased was killed in the state of Idaho, the usual and most direct route between Spokane and his home, Asotin, passing for a short distance through that state. The principal question involved was whether or not, under these circumstances, the provisions of the workmen's compensation act applied, the parties having stipulated that but one question was presented, to wit: "Whether or not the industrial insurance act of the state of Washington has any extraterritorial operation." The opinion calls attention to the fact that the day's work of the deceased had not been finished, and it was held that he was still in the course of his employment. It seems clear that the workman was being paid for the time consumed on the trip, and, in view of the question submitted and discussed by this court in its opinion, the case is not controlling here.

This court, in the case of Brown v. Department of Labor andIndustries, 135 Wn. 327, 237 P. 733, held that a workman, paid by the hour, who left his place of employment after the close of his work and proceeded in his own automobile directly towards his home, was not, while so traveling, in the course of his employment. In its opinion, this court said:

"We think it can be safely said that ordinarily when an employee is injured while traveling the public road on his way to or from his place of work by conveyances not furnished by the employer, and he is not to be paid for the time consumed in going to and coming from his work, and at the time of his injury he is not on or in the immediate proximity of his employer's premises, the injury does not arise out of the employment, under the terms of our statutes. . . .

"The deceased was not injured near the premises of his employer, but on the public road several miles away. He was not injured on a thoroughfare leading directly to or from his employer's premises. In no true sense can it be said that the place of his death was connected with the premises of his employer. The dangers he encountered were identically those which every person who traveled that public road faced. His risk was not, as the supreme court of the United States said in theCudahy case, `beyond that to which the general public was subjected.' If respondent could recover under the facts of this case she could recover had her husband met his death ten or twenty miles away from the plant, or while traveling on a street car or railroad train, if he had been going directly home from his place of work. The legislature has not undertaken to provide compensation for those injured on their way home from, or on their way to, the premises of their employer."

It seems to me that, under the doctrine of the case last cited and the rule laid down in the cases of Tallon v. InterboroughRapid Transit Co., 232 N.Y. 410, 134 N.E. 327, 21 A.L.R. 1218;Orsinie v. Torrance, 96 Conn. 352, 113 A. 924, and Palko v.Taylor-McCoy Coal Coke Co., 289 Pa. 401, 137 A. 625, the judgment of the trial court should be affirmed.

PARKER, MAIN, and MITCHELL, JJ., concur with BEALS, J.