Marlow v. Goodyear Tire & Rubber Co.

Decision Date29 March 1967
Docket NumberNo. 40434,40434
Citation10 Ohio St.2d 18,225 N.E.2d 241,39 O.O.2d 11
CourtOhio Supreme Court
Parties, 39 O.O.2d 11 MARLOW, Appellant, v. The GOODYEAR TIRE & RUBBER CO., Appellee et al.

Syllabus by the Court

An employee who, on his way from the fixed situs of his duties after the close of his work day, is injured in a collision of his automobile and that of a fellow employee occurring in a parking lot located adjacent to such situs of duty and owned, maintained and controlled by his employer for the exclusive use of its employees, receives such injury 'in the course of, and arising out of' his employment, within the meaning of that phrase in the Workmen's Compensation Act, Section 4123.01(C), Revised Code. (Gregory v. Industrial Commission, 129 Ohio St. 365, 195 N.E. 699; Kasari v. Industrial Commission, 125 Ohio St. 410, 181 N.E. 809, 82 A.L.R. 1040; Industrial Commission v. Henry, 124 Ohio St. 616, 180 N.E. 194; Industrial Commission of Ohio v. Barber, 117 Ohio St. 373; and DeCamp v. Youngstown Municipal Ry. Co., 110 Ohio St. 376, 144 N.E. 128, followed.)

Appellant, Walter C. Marlow, as an employee of appellee, The Goodyear Tire & Rubber Company, assigned to one of its plants in Akron, Ohio, was permitted to and did use for the storage of his personal automobile one of several parking lots located adjacent to such plant which was owned, maintained and controlled by Goodyear exclusively for the use of its employees. Marlow paid three dollars per month for the privilege and was assigned a permanent stall in a parking garage located on the parking lot. On August 1, 1961, at approximately 12:10 a. m., after Marlow's daily shift ended, he proceeded directly to his car and in the process of driving it out of the parking garage it was struck by an automobile of a fellow employee who was also engaged in leaving the parking grounds. As a result of that collision, Marlow received injuries for which he filed a claim with the Bureau of Workmen's Compensation. That claim was denied by the administrator, the Canton Regional Board of Review and the Industrial Commission. On appeal to the Court of Common Pleas of Summit County, the cause was submitted to the court upon a stipulation of facts, and judgment was awarded to the claimant.

The Court of Appeals reversed and the following language is found in its opinion:

'* * * While it may be said that the workman was injured in the zone of his employment, the workman was not injured as the result of negligence of the employer in its operation of the parking area, nor was he confronted with hazards peculiar to and growing out of the conditions of his employment in any other respect. * * * The manner of going home from work in this case was a personal problem of the workman and was not a part of his services to his master, so that in the absence of the master's negligence, or of some special hazard to him, within the 'zone of employment,' the employee, although making use of parking services made available by the master, cannot be said to have suffered injury arising out of his employment.'

Richard A. Nye and John R. Barrett, Akron, for appellant.

Walter E. deBruin, Akron, for appellee.


We can well appreciate the appellee's vigorous support of the reasoning of the Court of Appeals. If negligence of an employer is to cast the balance in favor of coverage under the Workmen's Compensation Act, he will have the best of both worlds. When an injury is occasioned by his default, he is shielded from heavy potential liability at common law. When, on the other hand, an injury occurs in the absence of his failure of a common-law duty, his experience rate is unaffected. We cannot approve this novel doctrine and, therefore, reverse.

Perhaps it deserves repeating here that the adoption of the Workmen's Compensation Act was not merely to compensate injuries for which an employer would otherwise be liable at common law. The unavailability of the defenses of contributory negligence, assumption of the risk, and the fellow-servant doctrine are indicative of its broad purpose.

The source of the rule of this case as pronounced in the syllabus can be traced directedly to DeCamp v. Youngstown Municipal Ry. Co., 110 Ohio St. 376, 144 N.E. 128, one of the early 'zone of employment' cases, although that phrase was not given expression until Industrial Commission of Ohio v. Barber, 117 Ohio St. 373, 159 N.E. 363.

In the retrospect of over 40 years, the difficulties of the first two 'zone' cases seem minimal. Industrial Commission of Ohio v. Pora, 100 Ohio St. 218, 125 N.E. 662 (compensation allowed for injury during working hours and in the plant caused by assault as a result of argument over possession of an implement used in the business), and Industrial Commission of Ohio v. Weigandt, 102 Ohio St. 1, 130 N.E. 38 (compensation allowed for injury caused by file accidentally thrown as the result of a friendly scuffle between fellow employees in the plant and near the place of duty but immediately prior to the commencement of work). In the third case, Conrad v. Youghiogheny & Ohio Coal Co., 107 Ohio St. 387, 140 N.E. 482, 36 A.L.R. 1288, compensation was denied for an injury occurring after the regular hours of work while the injured employee was riding one of the employer's cars away from the premises, which he was permitted, but not required, to do. Conrad is not referred to in DeCamp, but its force would clearly seem to have been dimished, if not extinguished, by that and other later cases.

DeCamp held that the injury of an employee of the street railway company occurring at a regular car stop on the company premises at which he usually alighted and did, in fact, alight on the day in question on his way to work in the car barns was in the course of his employment because his contract of hire included both wages and transportation to and from work. The difference between free transportation on the facilities of the employer and the privilege of parking and storing an employee's private means of transportation for a nominal fee on premises owned and maintained by the employer conveniently to the place of work, would seem to be insubstantial. In neither situation is the employee pursuing the will of, or controlled by, the employer. He is availing himself of a privilege rather than obeying a duty.

On its facts, Industrial Commission of Ohio v. Barber, supra, 117 Ohio St. 373, 159 N.E. 363 (employee covered by workmen's compensation although struck, on his way to work, by an automobile of fellow employee 20 to 40 feet outside of employer's enclosure, on a private street under employer's control, that street affording the sole access to the place of work), adds further growth to the rule of this case. However, in an affort to distinguish that case from Conrad, the court rested its decision on the lack of free choice of access to the actual place of work. The point appears to be illogical. If an employer provides two accesses and the employee has his choice, an injury on either may not be compensable because the other was available for use.

In any event, that point was ignored in Industrial Commission of Ohio v. Henry, 124 Ohio St. 616, 180 N.E. 194, the first paragraph of the syllabus of which summarizes the facts:

'Where the claimant's decedent had entered upon his employment in the early morning hours, had left the premises of the employer to get his breakfast at a restaurant, in accordance with a custom acquiesced in by the employer, and, while returning to the premises of the employer by a direct and necessary route along a public thoroughfare, was struck by a train running upon the tracks of a railroad so immediately adjacent to the premises of the employer that the only way of ingress and egress toward the restaurant was one of hazard, the accident arose out of and in the course of decedent's employment.'

Four months later, the rule reached full development when Kasari v. Industrial Commission, 125 Ohio St. 410, 181 N.E. 809, 82 A.L.R. 1040, was decided, the syllabus of which reads:

'1. An employee, entering the premises of his employer to begin the discharge of the duties of his employment, but who has not yet reached the place where his service is to be rendered, is discharging a duty to his employer which is a necessary incident to his day's work.

'2. Traversing the zone between the entrance of the employer's premises and the plant where an employee is employed, is one of the hazards of the employment.

'3. The negligence of an employer is not a necessary element of recovery by an employee...

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