Hinojosa v. Workmen's Comp. Appeals Bd.

• Decision Date: 18 October 1972
• Docket Number: S.F. 22869
• Citation: 8 Cal.3d 150,104 Cal.Rptr. 456,501 P.2d 1176
• Court: California Supreme Court
• Parties: , 501 P.2d 1176 Miguel HINOJOSA, a Minor, etc., Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, W. W. Wiest, et al., Respondents. In Bank

Page 456

104 Cal.Rptr. 456

8 Cal.3d 150, 501 P.2d 1176

Miguel HINOJOSA, a Minor, etc., Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, W. W. Wiest, et al., Respondents.

S.F. 22869.

Supreme Court of California,

In Bank.

Oct. 18, 1972.

Fullerton, Lang & Richert, Frank H. Lang, Jr., and Harold L. Williams, Fresno, for petitioner.

Mullen & Filippi, Frank J. Filippi and Charles F. Lee, San Francisco, for respondents.

Melvin S. Witt, Berkeley, as amicus curiae on behalf of petitioner.

TOBRINER, Justice.

Petitioner seeks review of a decision of the Workmen's Compensation Appeals Board vacating a referee's compensation award on the grounds that by reason of the so-called 'going and coming rule' the injury to petitioner did not arise 'out of and in the course of employment.' We believe that instead of the rigid and automatic 'going and coming rule' posited by the board the cases indicate a more refined definition, specifying with more exactitude the circumstances under which workmen's compensation covers death and injury in transit and those in which it does not. Applying this underlying formula, which the cases express, we hold that the Workmen's Compensation Act covers the injury incurred here and that petitioner should receive the benefits provided by the act.

The facts may be briefly summarized. Petitioner's employer, W. W. Wiest, an operator of seven or eight noncontiguous ranches, employed Miguel Hinojosa as a farm laborer, for thinning and picking peaches, plums, and apricots on his ranches. Upon completion of the work at one ranch, the foreman followed the practice of directing and assigning the workers to a different ranch. Hinojosa worked at this job nine to nine and one-half hours per day, six days a week, and received in payment $1.75 per hour. Like the other laborers, Hinojosa's payment started from the time he arrived at the job and continued until he departed for home, including the time spent in transit between the various Wiest ranches.

The workers, including petitioner, were required to provide their own private vehicles between the fields. The referee specifically found that 'the nature of the work made it necessary for an employee to have transportation during the work day as the employer shifted him from one ranch to another.' ¹ Hinojosa did not know from day to day on which of his employer's fields he would be working or the duration of the work on that field; he needed a motor vehicle not only to get to the fields but for the variable inter-ranch transit necessary to perform the day's work. Thus the working conditions imposed by the employer required that Hinojosa provide himself with some form of automotive transportation.

Hinojosa did arrange for such transportation. Not owning a car of his own, he entered into an agreement to ride with a fellow worker, Raphael Rodriguez, both to and from work and between the farms during the day. In return, Hinojosa paid Rodriguez $3.00 per week to share the operating costs of the automobile.

On June 8, 1970, petitioner finished his work on Wiest's 'airport ranch,' the location to which he was instructed to return the following morning. He left the ranch in Rodriguez' vehicle, and was enroute home, when the car in which he was riding collided with another, causing him the injuries for which he seeks workmen's compensation benefits. ²

Following a hearing in January 1971, the referee found that the injury to petitioner arose out of and in the course of his employment and awarded compensation. The appeals board, however, vacated the award on the ground that the 'going and coming rule' barred the claim and that Hinojosa's injury was therefore noncompensable. The board rejected the argument of the referee that Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365 afforded controlling authority, noting that although the referee found that the employer required the employees to provide their own transportation on the job, Hinojosa was only a passenger, not the owner, of the car in which he sustained injury. Consequently, the board concluded that the Smith 'exception' to the 'going and coming rule' should not be applied to the case.

The question of whether petitioner should obtain compensation therefore turns on the relevance of the so-called 'going and coming rule' to the circumstances surrounding his injury. In considering that question, a review of the development of that doctrine will illumine its claimed applicability.

Unlike a number of states, ³ California's 'going and coming rule' is not a legislatively enacted limitation, but wholly a judicially created one. (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd. (1967) 66 Cal.2d 944, 946, 59 Cal.Rptr. 622, 428 P.2d 606.) Historically the doctrine appears to have received its first judicial recognition in California in Ocean Accident & Guarantee Co. v. Ind. Acc. Com. (1916) 173 Cal. 313, 159 P. 1041. In deciding the issue of compensability for the death of a shipworker who fell into the bay on the way to his vessel and drowned, the court noted that the California Workmen's Compensation Act of 1913 (Stats.1913, ch. 176, p. 279) was modeled after the 1897 English act (Workmen's Compensation Act, 1897, 60 & 61 Vict. ch. 37).

Discussing at length the English cases on the issue, the court concluded that 'the governing principles of all the decisions . . . is that there are excluded from the benefits of the act all those accidental injuries which occur while the employee is going to or returning from his work.' (Id., at pp. 321--322, 159 P. at p. 1044.) The reason for this limitation, the court declared, lay in the fact that, while travel to and from work grew out of, and was incidental to the employment, an employee going to and from his place of employment was not, pursuant to the requirement of the statute, rendering any Service to the employer at the time of the accident. Therefore, the court held, such injuries fell outside the scope of the compensation act's coverage. ⁴

In the years immediately following the decision in Ocean Accident, the courts soon realized that the principle announced in that case did not universally apply. In fact, only three years after the decision, the court in Judson Mfg. Co. v. Ind. Acc. Com. (1919) 181 Cal. 300, 303, 184 P. 1, 2, disapproved of 'this sweeping Dictum . . . not necessary to the decision of the case,' in Ocean Accident, 'that . . . all those accidental injuries which occur while the employee is going to or returning from his work . . . (are) excluded from the benefits of the act.' The court in Judson cautioned against laying down any such absolute dictate, advising instead that the courts should consider each set of facts in light of the words of the statute.

Similarly, in granting compensation to a newspaper boy injured on his way home after delivering his papers, the court in Makins v. Ind. Acc. Com. (1926) 198 Cal. 698, 703, 247 P. 202, 204, rejected the petitioner's contention that the 'going and coming rule' precluded the award. 'Each case,' said the court, 'must be adjudged by the facts which are peculiarly its own. Industrial accidents are produced by so many varying circumstances that it is rather un usual to find any two or more cases that may be ruled by the same legal precedent.'

Despite references, such as the one in Dellepiani v. Ind. Acc. Com. (1931) 211 Cal. 430, 439, 295 P. 826, 830, to 'the 'coming and going rule' as announced by the court in the case of the Ocean Accident . . .,' the court in subsequent years continued to recognize that the 'rule' was 'subject to many exceptions,' and that each case should be adjudged on its own unique facts. (Enterprise Foundry Co. v. Ind. Acc. Com. (1929) 206 Cal. 562, 565, 275 P. 432.) Justice Shenk's dissent in the Enterprise Foundry case also marked the first judicial recognition of the relevance of the liberal construction clause of the Workmen's Compensation Act to the issue. (Id., at p. 570, 275 P. 432.) A growing awareness developed that the beneficent aims of the act could simply not be served by an inflexible judicial fiat which barred compensation for all injuries received going to or coming from work.

By 1942, Justice Traynor, speaking for a unanimous court in Cal. Cas. Indem. Exch. v. Ind. Acc. Com. (1942) 21 Cal.2d 461, 132 P.2d 815, discarded the requirement on which the rationale of the 'going and coming rule' established in Ocean Accident had rested--that the employee must, at the time of the injury, be performing service to the employer to be eligible for compensation. In granting compensation to a stenographer injured in an automobile accident in a company car on her way home from work, the court commented, 'Petitioner contends that the applicant was not acting within the course of her employment at the time of her injury because she was not performing any service growing out of or incidental to her employment. It is not indispensable to recovery, however, that the employee be rendering service to his employer at the time of the injury.' (Id., at p. 465, 132 P.2d at p. 818.)

In a namesake case a year later, Cal. Cas. Indem. Exch. v. Ind. Acc. Com. (1943) 21 Cal.2d 751, 135 P.2d 158, the court recognized that since the rendition of the Ocean Accident case, the exceptions to the going and coming doctrine had been 'considerably broadened' and the 'rule' was 'not of inevitable application.' Nevertheless, the court noted that the 'rule' still presented difficulty in borderline cases of determining whether or not an employee was within the purview of the compensation act. 'In view of this state's policy of liberal construction in favor of the employee,' a unanimous court held, any reasonable doubt as to the applicability of the going and coming doctrine must be resolved in the employee's favor. (Id., at pp. 756--760, 135 P.2d at p. 164; accord, Dimmig v. Workmen's Comp. App. Bd. (1972) 6 Cal.3d 860, 867, 101 Cal.Rptr. 105, 495 P.2d...