Moser v. Industrial Commission

• Decision Date: 22 April 1968
• Docket Number: No. 11031,11031
• Citation: 21 Utah 2d 51,440 P.2d 23
• Parties: d 51 G. V. MOSER, Plaintiff, v. The INDUSTRIAL COMMISSION of Utah et al., Commercial Carriers, Inc., and Firemen's Fund, Defendants.
• Court: Utah Supreme Court

Page 23

440 P.2d 23

21 Utah 2d 51

G. V. MOSER, Plaintiff, v. The INDUSTRIAL COMMISSION of Utah et al., Commercial Carriers, Inc., and Firemen's Fund, Defendants.

No. 11031.

Supreme Court of Utah.

April 22, 1968.

A. Park Smoot, Salt Lake City, for plaintiff.

Christensen & Jensen, Norman S. Johnson, Salt Lake City, for defendants.

CROCKETT, Chief Justice.

Gerald V. Moser seeks reversal of an order of the Industrial Commission denying his claim for workmen's compensation for disability caused by burns suffered while he was attempting to start his truck which he had leased to, and was employed as a driver for, defendant Commercial Carriers, Inc.

Defendant Commercial Carriers is in the business of transporting automobiles. It employs plaintiff as a truck driver. Under their arrangement, plaintiff owned the truck, but leased it to the company by an agreement which gives the latter the full right of possession, use and control of it.

On the night of September 8, 1965, the plaintiff, upon completion of a trip, checked in at the defendant's Salt Lake terminal, learned of his assigned trip for the next day and drove the truck home and parked it on a lot nearby, as was permitted by his employer. The next morning he had difficulty in getting the truck started. He phoned the defendant's manager who told him to check the truck for ignition and gas to try to correct the situation; and that if he couldn't, help would be sent. In the course of carrying out these instructions, while pouring gasoline in the carburetor, it spilled on him, ignited, and caused the burns and disability for which he filed the instant claim for compensation.

There is a bothersome perplexity in the Commission's finding and order. It correctly stated that 'the only issue is whether the accident occurred within the scope of plaintiff's employment.' But it made no finding on that issue. Instead of dealing with that issue squarely, the decision of the Commission appears to be based on these recitals:

(1) that the plaintiff was not on his way to the terminal when the accident occurred; and

(2) that plaintiff's work began when he reached the terminal and not when he left home; and the conclusion that

the applicant was not an employee of Commercial Carriers, Inc., within the meaning of the workmen's compensation act when the accident occurred.

Whether this failure to find directly on the critical issue stated above was done advisedly or by inadvertence, we do not know. The findings are defective in that regard. There can be no question but that the plaintiff was an employee of the defendant company when the accident occurred. However, rather than being diverted by that puzzle, in view of the fact that there is little or no dispute as to the essential facts, we think justice will best be served by proceeding to consider the question which ultimately must be determined anyway: whether under those facts the accidental injury to the plaintiff should be deemed to have arisen out of or within the scope of his employment. ¹

In seeking the answer to that problem, it is appropriate to focus attention upon the factual situation and plaintiff's relationship thereto, just as it existed at the time of his injury. Before doing so, we first observe that this case is quite different and therefore distinguishable from the usual case of 'going to or coming from work,' which we recognize as not within the scope of employment. ²

The first important fact to be noted is the status of the truck. Inasmuch as under the lease the truck was committed to being used in defendant's business with the full right of possession and control, the effect as related to the issue here is the same as if the truck belonged to the company, and it makes no difference who the owner was. Though it was parked in a lot near the plaintiff's home, in order to continue its function in the defendant's business, it was necessary that someone take it down to the defendant's terminal. This would have to be done by someone who was furthering its business and thus in its service. The plaintiff's duty to drive the truck includes those things reasonably incidental to keeping it running and drivable. ³

Coupled with the above are the further significant facts that the problem of the truck stalling had been reported to the manager; and that he had given directions to the plaintiff who was in the process of carrying them out when he was injured. We are not losing sight of nor ignoring the fact that bringing the truck to the defendant's terminal also provided plaintiff with transportation to work. But where an employee is engaged in activities in carrying on the work of his employer, he is within the scope of his employment and the mere fact that he may also derive some benefit himself does not exclude him from coverage. ⁴

Closely related in principle is our recently decided case of Bailey v. Industrial Commission. ⁵ We held that the deceased employee (self-employer) who was driving to work in a station wagon used in his service-station business was performing a substantial service required by the business and that his fatal accident occurred in the course of his employment. ⁶

It is our opinion that the only reasonable conclusion to be arrived at in this case is that plaintiff's injuries were sustained in the course of his employment, and that he should be awarded workmen's compensation therefor. ⁷ It is so ordered. Costs to plaintiff.

CALLISTER and TUCKETT, JJ., concur.

ELLETT, Justice (dissenting):

I dissent. Whether plaintiff was in the course of his employment at the time of injury seems to me to be a fact on which the Industrial Commission did make a finding, to-wit, that plaintiff was not in the course of his employment. In my opinion no other finding could have been made under the facts of this case. Here the plaintiff leased his tractor to Commercial Carriers, Inc., and was to drive it as directed by that company. His contract provided that the company was to have full charge and complete control of the motor vehicle equipment for the full period of the lease.

The work of the plaintiff for the Commercial Carriers, Inc., was to transport automobiles. He was paid only while hauling cars and got nothing when traveling empty going for or returning from hauling a load of automobiles. He was in the employment of his company from the time he left the terminal until he returned thereto and not otherwise.

By custom plaintiff was permitted to take his own tractor to go to his home after he had returned to the terminal from hauling a load of cars. There would be no difference in the relationship between plaintiff and the company if he had been permitted to drive any other vehicle or, for that matter, had he been permitted to ride a bicycle which the company might keep at its terminal. If plaintiff had ridden the company bicycle to his home and got his foot caught in the sprocket, it would be difficult for me to understand how he could contend that he was in the course of his employment or that the injury arose out of his employment under such circumstances. When Mr. Moser tried to start his motor to go back to the terminal of his company, it was merely to see if he was to go out on a trip. He had no trip at that time and had not been requsted to report to the terminal. He, like others who lease tractors, would simply await his turn to be sent out with a load of cars or to pick up a load of cars.

The fact that the dispatcher gave him a bit of friendly advice on how to start his motor was a simple courtesy and did not convert the trip which he had made to his own home for his own convenience into a company affair. It would not have mattered to the company if Mr. Moser had slept at a motel or at any other place after arriving at the terminal the prior night. His work for the company was ended, and until he started on another trip he was on his own business and not on company affairs.

Had the company directed the plaintiff to take the truck home, a different situation would have arisen, but in this case the plaintiff had simply gone off on an adventure of his own and had not as yet returned to his employer's business.

The law in such situations is rather clear as is shown by the following:

Where the harm which befalls an employee whose work is usually performed off the employer's premises occurs while the employee is on a personal trip, such harm is not compensable as 'arising out of the employment,' and this notwithstanding the employee is required, as an incident to his trip, to do a trifling job for his employer. Also, an injury suffered by an outside employee while not in the actual performance of the duties required by the contract of employment has been held not in the course of the employment. (99 C.J.S. Workmen's Compensation § 231, at p. 798.)

Ordinarily, an employee is deemed not to be within the course of his employment if he furnishes his own transportation and is injured while going to or from the premises where he is employed. Where the employer is not in the habit of furnishing transportation to and from work for the convenience of his employees, and particularly where the employer is not required by the contract of employment to transport the employees, or where the employee does not choose to avail himself of the means of transportation or of a way provided by the employer, harm sustained by one of such employees being, or attempting to be, transported on his way to or from his home by a conveyance furnished or selected by the employee himself is not ordinarily compensable. If the transportation is not furnished by the employer, but is provided by the employee himself for his own personal convenience, it amounts to no part of the employment, and any injury received in the course of such transportation will afford no basis for compensation. (99 C.J.S. Workmen's Compensation § 236, at pp. 844--845.)

In addition to the cases cited in the earlier annotation, the following later c...