Harris v. Oro-Dam Constructors

• Decision Date: 20 February 1969
• Docket Number: ORO-DAM
• Citation: 75 Cal.Rptr. 544,269 Cal.App.2d 911
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth HARRIS, and Judy Harris, a minor, by and through Ruth E. Harris, her guardian ad litem, Plaintiffs and Appellants, v.CONSTRUCTORS, Defendant and Respondent. Civ. 11721.

Page 544

75 Cal.Rptr. 544

269 Cal.App.2d 911

Ruth HARRIS, and Judy Harris, a minor, by and through Ruth E. Harris, her guardian ad litem, Plaintiffs and Appellants, v. ORO-DAM CONSTRUCTORS, Defendant and Respondent.

Civ. 11721.

Court of Appeal, Third District, California.

Feb. 20, 1969.

Rehearing Denied March 19, 1969.

Hearing Denied April 17, 1969.

Reginald M. Watt, Chico, for plaintiffs-appellants.

Leonard & Lyde, by Raymond A. Leonard, Oroville, for defendant-respondent.

FRIEDMAN, Associate Justice.

In this wrongful death action the jury returned a verdict against Byers, the defendant automobile driver. Plaintiffs appeal, because the jury exonerated Oro-Dam Constructors, his employer. At the time of the collision Byers had completed his daily work shift and was driving his own automobile on a direct homeward journey. Although the 'going and coming rule' ordinarily insulates the employer from liability for the negligent driving of an employee enroute to or from work, plaintiffs contend that the employer's payment of Byers' travel expenses excludes the going and coming rule as a matter of law.

Two months before the accident Oro-Dam Constructors, a contractor on the Oroville Dam Project, had employed Byers as an oiler on a truck crane. Byers lived in Marysville, about 23 miles from the job site. The governing collective bargaining agreements gave Byers, a member of the operating engineers' union, the benefits provided under the employers' contract with the piledrivers' union. Byers received an hourly wage for an eight-hour shift, which began and ended at the job site. Thus the hourly wage rate did not cover travel time. He did receive a daily transportation allowance of $6. This allowance was established by the piledrivers' collective bargaining contract, which described it as a 'reimbursement for travel expenses.' It was payable to employees who resided more than 15 miles from the place of work.

The going and coming rule is a special expression of the Respondeat superior principle, which limits an employer's liability for his employee's torts to those committed in the course of the latter's employment. As a feature of California automobile liability law, the limitation first appeared as a logical application of the Respondeat superior doctrine. (Mauchle v. Panama-Pacific International Exposition Co. (1918) 37 Cal.App. 715, 717--719, 174 P. 400; Nussbaum v. Traung Label etc. Co. (1920) 46 Cal.App. 561, 571--572, 189 P. 728.) Later, it crystallized as a decisional rule under the sobriquet 'going and coming.' (Robinson v. George (1940) 16 Cal.2d 238, 244, 105 P.2d 914; Boynton v. McKales (1956) 139 Cal.App.2d 777, 788--789, 294 P.2d 733; Vivion v. National Cash Register Co. (1962) 200 Cal.App.2d 597, 605, 19 Cal.Rptr. 602; Harvey v. D. & L. Constr. Co. (1967) 251 Cal.App.2d 48, 51, 59 Cal.Rptr. 255; see 6 Blashfield, Automobile Law and Practice (3d ed. 1966) pp. 166--171; Annots. 52 A.L.R.2d 287--346, 52 A.L.R.2d 350--402.) Generally, the rule declares that an employee is not within the scope of his employment while he is going to or returning from his place of work. The rule is sometimes ascribed to the theory that the employment relationship is 'suspended' from the time he leaves his job to go home until he returns to it. (See, e.g., Harvey v. D. & L. Constr. Co., supra.) Sometimes it is ascribed to the notion that he is not at that time rendering a service to his employer. (See, e.g., Robinson v. George, supra; Rest.2d Agency, § 229, com. d.)

The rule has had a parallel development in a separate but related field of the law, workmen's compensation. The problem in the workmen's compensation cases is whether an injury to the employee arose 'out of and in the course of the employment.' (Lab.Code, § 3600.) The limitation which denies compensation when the employee is injured enroute between home and work originated in British workmen's compensation decisions and was imported into California by Ocean Acc. and Guarantee Co. v. Industrial Acc. Com. (1916) 173 Cal. 313, 322, 159 P. 1041, L.R.A.1917B, 336. Since then, the going and coming rule 'has become a part of the jurisprudence of workmen's compensation by judicial decision.' (Zenith National Ins. Co. v. Workmen's Comp. App. Bd. (1967) 66 Cal.2d 944, 946, 59 Cal.Rptr. 622, 624, 428 P.2d 606, 608.) "It is the general rule that injuries sustained by an employee going to or returning from work are not compensable under the Workmen's Compensation Act. Labor Code, § 3201 et seq. The rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work." (Kobe v. Industrial Acc. Com. (1950) 35 Cal.2d 33, 35, 215 P.2d 736, quoted in Zenith National Ins. Co. v. Workmen's Comp. App. Bd., supra, at pp. 946--947, 59 Cal.Rptr. 622, 624, 428 P.2d 606, 608.)

California workmen's compensation decisions recognize a number of exceptions to the going and coming rule. Where the employer requires the employee to drive his own car to work, the latter's injury is employment-connected and compensable. The rationale is that his trip indirectly benefits the employer, hence is incompatible with a suspension of the employment relationship. (Smith v. Workmen's Comp. App. Bd. (1968) 69 A.C. 845, 851, 73 Cal.Rptr. 253, 447 P.2d 365; see also Whaley v. Workmen's Comp. App. Bd. (1968) 267 A.C.A. 941, 73 Cal.Rptr. 348.) Similarly, the going and coming rule will not bar workmen's compensation coverage where the employer defrays the employee's travel expenses. (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd., supra, 66 Cal.2d at pp. 947--949, 59 Cal.Rptr. 622, 428 P.2d 606; Kobe v. Industrial Acc. Com., supra, 35 Cal.2d at p. 35, 215 P.2d 736; 2 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d ed.) pp. 9--38--9--39; 1 Larson, Workmen's Compensation Law, pp. 270--277.) The travel expense exception applies whether the employer pays travel expenses pursuant to contract or in lieu of a promise to furnish transportation. (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd., supra, 66 Cal.2d at p. 949, fn. 4, 59 Cal.Rptr. 622, 428 P.2d 606.)

Plaintiffs rely heavily on the workmen's compensation 'travel expense' cases. Indeed, a number of California decisions cite the tort liability and workmen's compensation cases interchangeably, as though the prolongations and indentations of the going and coming rule must procisely duplicate themselves in both fields of the law. (See, e.g., Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 239--244, 120 P.2d 650; Robinson v. George, supra, 16 Cal.2d at pp. 244--245, 105 P.2d 914; Boynton v. McKales, supra, 139 Cal.App.2d at p. 789, 294 P.2d 733.) Plaintiffs also rely on Breland v. Traylor Engineering etc. Co. (1942) 52 Cal.App.2d 415, 423--425, 126 P.2d 455. Breland, indeed, is a direct precedent, since it is a tort case which excludes application of the coming and going rule where the employee-driver receives a transportation allowance from the employer. Because Breland rests on workmen's compensation decisions to the exclusion of tort principles and precedents, we do not care to be bound by it. Although a healthy symbiosis is possible, precedents developed in one field should not be injected into another without recognition of the separate principles prevailing in each. ¹

Court-made workmen's compensation doctrines develop from a social philosophy distinct from that underlying tort rules. Tort liability rests upon fault, compensability for employee injuries upon work-connection regardless of fault. Work-connection as the basis of compensability serves to transfer the cost of injury to the ultimate buyers of the commodity or service in the production of which the injury has occurred. (1 Larson, Op. cit., pp. 6--7.) In reviewing workmen's compensation awards, the courts heed statutory admonitions for a liberal construction favoring coverage of the injury. (Lab.Code, § 3202; Lundberg v. Workmen's Comp. App. Bd., 69 A.C. 445, 449, 71 Cal.Rptr. 684, 445 P.2d 300.) Although not always reiterated, the promptings of liberalized coverage frequently serve as the inarticulate impulse for judicial limitations upon the going and coming rule in workmen's compensation cases.

The expansions and contractions of vicarious liability for torts result from other considerations. Although in a sense Respondeat superior imposes strict liability upon the employer, its foundation is the imputation of the employee's fault to the employer because of the special relationship between them. (2 Harper and James, Torts (1956) pp. 1361--1363; Prosser, Torts (3d ed. 1964) p. 470.) Activity 'within the scope of employment' is the pivot of the employer's responsibility, but the pivoting action responds to two primary inquiries: (1) the activity's benefit to the employer's enterprise and (2) his right to control it. (Standard Oil Co. v. Anderson (1909) 212 U.S. 215, 220--221, 29 S.Ct. 252, 53 L.Ed. 480; Robinson v. George, supra, 16 Cal.2d at p. 244, 105 P.2d 914; Gossett v. Simonson (1966) 243 Or. 16, 411 P.2d 277, 279--282; Restatement Agency 2d §§ 219, 228; 2 Harper and James, op. cit. 1366--1370; Prosser, op. cit. pp. 471--473; Laski, The Basis of Vicarious Liability (1916) 26 Yale L.J. 105, 123--124; Ferson, Bases for Master's Liability and for Principal's Liability to Third Person (1951) 4 Vanderbilt L.R. 260, 269--270, 287.) ²

The test of benefit to the employer's enterprise is expressed in California case law by the requirement that the employee be 'engaged in the duties which he was employed to perform' (or) 'those acts which incidentally or indirectly contribute to the (employer's) service.' (Kish v. California State Automobile Assn. (1922) 190 Cal. 246, 249, 212 P. 27; Boynton v. McKales, supra, 139 Cal.App.2d at p. 789, 294 P.2d 733; see also Rest.2d Agency, §§ 228, 229.) Conversely, the employer is not liable when the employee is...