Gumbrecht v. State Acc. Ins. Fund

• Decision Date: 12 May 1975
• Citation: 534 P.2d 1189,21 Or.App. 389,75 Adv.Sh. 1716
• Parties: In the Matter of the Compensation of Gail M. Gumbrecht, Claimant. Gail M. GUMBRECHT, Respondent, v. STATE ACCIDENT INSURANCE FUND, Appellant.
• Court: Oregon Court of Appeals

Page 1189

534 P.2d 1189

21 Or.App. 389

In the Matter of the Compensation of Gail M. Gumbrecht, Claimant Gail M. GUMBRECHT, Respondent, v. STATE ACCIDENT INSURANCE FUND, Appellant.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1975.

Decided May 12, 1975.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Dan O'Leary, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, Portland.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

The State Accident Insurance Fund appeals from a decision of the circuit court holding that claimant's injury in this case is compensable. The circuit court decision reversed an order of the Workmen's Compensation Board. The sole issue in this case is whether claimant's injury arose '* * * out of and in the course of (her) employment' as required for compensation under ORS 656.002(7)(a). ¹

The facts are stipulated. On June 14, 1973, claimant was employed at The Psychology Center in Portland, a business which performs psychological testing and evaluation. It has been a long-continued practice at The Psychology Center, supported and encouraged by the management, to celebrate the birthday of each employe. This celebration normally consists of a lunch purchased by Dr. Hickman, the director of the Center, and a later celebration with cake, coffee and presents.

It was stipulated that Elaine Hubble, claimant's supervisor, would testify that since these birthday parties were a practice which the management consciously supported and encouraged, she would have felt it her responsibility to take care of the arrangements if no one volunteered to do so. It was also stipulated that Dr. Hickman would testify that he knew of the practice of celebrating his employes' birthdays and encouraged this practice because it served to raise the morale of his employes.

Claimant usually traveled to and from work by bus. On June 14, 1973, she took her normal bus home from work, but stopped at a shopping center in Tigard to purchase some items needed for a co-worker's birthday party the next day. She spent approximately ten minutes purchasing paper plates, napkins, ribbon and wrapping paper. These items were all put into one sack, probably weighing no more than one or two pounds. She then boarded another bus to continue her journey home. This bus followed the same route that claimant normally traveled to get home from work. Claimant got off the bus across the street from her apartment, still carrying the sack with the items she had purchased. While crossing the street to reach her apartment, claimant fell and broke her left elbow. This accident occurred at approximately 6:20 p.m. Had she not stopped to purchase the items for the office party, claimant would probably have arrived home as usual at about 5:55 p.m.

Claimant's attorney stipulated that '* * * (W)e're not claiming the package in her hands enhanced the risk, or caused her to fall, or caused her injury in anyway (sic).'

The general rule in cases where a claimant is injured on the way home from work is:

'* * * (I)njuries sustained by employees when going to and coming from their regular place of work are not deemed to arise out of and in the course of their employment. * * *' Philpott v. State Ind. Acc. Com., 234 Or. 37, 40, 379 P.2d 1010, 1012 (1963).

See also, Fenn v. Parker Construction Co., 6 Or.App. 412, 487 P.2d 894 (1971); 1 Larson, Workmen's Compensation Law 4--2--4--3, §§ 15.00, 15.11.

There are exceptions to this rule. One exception, which claimant argues is applicable in this case is the so-called 'dualpurposes' rule. This rule was applied in Rosencrantz v. Insurance Service, 2 Or.App. 225, 467 P.2d 664 (1970), where this court said:

'* * * Of course, a trip that is purely personal does not arise out of and in the course of employment. However, if the trip is one of dual purpose, both business and personal, then the injury may arise out of and in the course of employment under certain circumstances. 1 Larson, Workmen's Compensation Law 294.3, § 18.00 (1968), states the test this way:

"Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey * * *.'

Larson goes on to say in § 18.12 at 294.5--294.10:

"The basic dual-purpose rule, accepted by the great majority of jurisdictions, may be summarized as follows: when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remanined undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee's personal journey." 2 Or.App. at 227--28, 467 P.2d at 665.

Larson specifically deals with the issue of employes who perform services for their employer while on their way to or from work:

'* * * In all such cases, we start with a personal motive--that of getting home--which would have caused the employee to take the trip in any case. The question them becomes: was the business mission of such character or importance that it would have necessitated a trip by someone if this employee had not been able to handle it in combination with his homeward journey?

'In some cases it has been possible to answer this question 'yes,' with the result that while covering his usual route toward his home the employee has been deemed, for this particular occasion, to remain in the course of his employment.' 1 Larson, supra, 4--169--4--170, § 18.21.

This rule was followed in Munson v. State Ind. Acc. Comm., 142 Or. 252, 20 P.2d 229 (1933). In that case the claimant was driving from his place of work to his home. He was on his normal route home but planned to make a stop to deliver reports...