Schreifer v. Industrial Acc. Commission

• Decision Date: 05 May 1964
• Citation: Schreifer v. Industrial Acc. Commission, 38 Cal.Rptr. 352, 61 Cal.2d 289, 391 P.2d 832 (Cal. 1964)
• Parties: , 391 P.2d 832 David D. SCHREIFER, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, County of Los Angeles, et al., Respondents. L. A. 27656.
• Court: California Supreme Court

Page 352

38 Cal.Rptr. 352

61 Cal.2d 289, 391 P.2d 832

David D. SCHREIFER, Petitioner, v.INDUSTRIAL ACCIDENT COMMISSION, County of Los Angeles, et al., Respondents.

L. A. 27656.

Supreme Court of California, In Bank.

May 5, 1964.

Jaffee, Mallery, Thompson & Talbott and George D. Thompson, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, T. Groezinger and Loton Wells, San Francisco, for respondents.

PETERS, Justice.

Applicant David Schreifer sought compensation from his employer, the County of Los Angeles, and its insurer, State Compensation Insurance Fund, for injuries suffered by him as a result of an automobile accident.The referee of the commission found that the accident arose out of the course and scope of the employment.The commission, however, with one of its members dissenting, held that the injuries were not compensable.The problem involved relates to the proper scope of the 'special mission' exception to the so-called 'going and coming' rule.It is our opinion, that the injuries here suffered occurred in the course of and arose out of petitioner's employment, and that the 'going and coming' rule is not applicable.

The facts are as follows.On December 13, 1961, Schreifer was employed as a deputy sheriff, attached, at that time, to a special enforcement detail, the purpose of which was to deal with major disasters in the county.Although as a deputy sheriff Schreifer was on 24-hour call, he normally worked 8 hours per day and, ordinarily, the administrative sergeant posted the work shifts on a bulletin board one day ahead.For the date of the accident, Schreifer's scheduled duty had been posted the day before as being from 7 p. m. to 3 a. m. At 1 p. m. of that day, however, his superior, the administrative sergeant, called him at his home (25 miles from the station), and instructed him to report for duty 'as soon as possible,' giving no reason for the early call.Schreifer, thereupon, left for the station, in his own car.He was not in uniform.While en route he was involved in an automobile accident in which he sustained the injuries here involved.He testified that this was not the first time he had received a call to come in early, although no such calls had occurred during the preceding month.There is no evidence to indicate what duties would have been assigned to him that day, or of the cause for the early call.He had, on occasion, depending on the nature of the assignment, received compensation for using his own car.He had not requested compensation for the use of his car on the date of the accident here involved.He did not know what his duties were to have been that day, nor did he know whether he would have worked extra hours.Generally he got compensatory time off for overtime work.

The injuries occurred while Schreifer was driving to work.Ordinarily, of course, they would not be compensable under the 'going and coming' rule.But this rule, it has long been recognized, is 'subject to many exceptions.'(Makins v. Industrial Acc. Comm., 198 Cal. 698, 703, 247 P. 202, 49 A.L.R. 411;State Compensation Ins. Fund v. Ind. Acc. Comm., 89 Cal.App. 197, 199, 264 P. 514.)Indeed, one writer in the field of workmen's compensation has suggested that the exceptions have swallowed the rule.(SeeHorovitz, Note, 14 NACCA L.J. 36.)The numerous exceptions are no doubt due to the fact that this judge-made rule is somewhat arbitrary and artificial.(See1 Larson, Workmen's Compensation Law 195.)

One well recognized exception to the rule is the 'special mission' or 'special errand' exception.¹(Robinson v. George, 16 Cal.2d 238, 105 P.2d 914;Vivion v. National Cash Register Co., 200 Cal.App.2d 597, 19 Cal.Rptr. 602.)The problem here involved is whether the facts bring the case within the general rule, or cause it to fall within the exception.In determining this question the mandate of Labor Code section 3202, which requires that the provisions of the act'shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment' must be kept in mind.Also 'this state's liberal policy of construction in favor of the employee' must not be forgotten.(Leonard Van Stelle, Inc. v. Industrial Acc. Comm., 59 Cal.2d 836, 841, 31 Cal.Rptr. 467, 470, 382 P.2d 587, 590.)

In his discussion of the 'special mission' exception, Campbell states that simply returning to do 'overtime' is not within the exception, but that returning to do 'a service outside his regular duty' is, stating, 'The special request for the unusual service is the decisive factor. * * *'(1 Campbell, Workmen's Compensation 173, 174.)Larson points out that it would be within the exception for the employee to return to perform usual service but at an odd hour.In that event, the trip is 'special' in that 'the bother and effort of the trip itself is an important part of what the employee is eventually compensated for.'(1 Larson, op. cit. supra, p. 224.)Hanna states that the exception includes the regular trip at a special time.(2 Hanna, The Law of Employee Injuries and Workmen's Compensation 178.)Boynton v. McKales, 139 Cal.App.2d 777, 789, 294 P.2d 733, 740, put it in terms of 'coming from his home * * * on a special errand either as part of his regular duties or at a specific order or request of his employer, * * *.'

A reference to a few other cases will indicate the scope of the exception.In Robinson v. George, supra, 16 Cal.2d 238, 105 P.2d 914, the court reversed a nonsuit for the defendant, employer, holding that defendant's employee was acting under the special errand exception at the time he injured the plaintiff.The employee was one of defendant's newspaper carriers.He serviced a regular route, which work he completed before 6 p. m. Thereafter, he was on call, and he would deliver papers to addresses, given to him by the district manager, of subscribers who had complained that they had not had delivery that day.It was held that each such special delivery was a special errand, and that defendant was liable under the doctrine of respondeat superior for the injuries inflicted by its employee while he was driving home after making such a delivery.

In State Compensation Ins. Fund v. Ind. Acc. Comm., supra, 89 Cal.App. 197, 264 P. 514, injuries sustained while the employee was en route home were held compensable.There the applicant, a salesman, was instructed to return to the office after dinner to admit an electrician who was to make some repairs that evening.He waited for the electrician to complete the job and then locked up after him.On his way home, he injured.The court noted that the services were performed after his regular hours and were services outside his regular duties as a salesman.

In London Guarantee & Acc. Co. v. Industrial Acc. Comm., 190 Cal. 587, 213 P. 977, the employee's job called for the making of exacting calculations.With his employer's knowledge and permission, he took some work home because it was quieter there than at the place of business.He paused for some lunch after he had completed the calculations, and was injured as he was leaving home to return to the office.The majority opinion denied compensation because the employee had, under the facts, deviated from his business purpose, but all agreed that there would have been coverage, under the 'special errand' exception, had he not deviated.

Sun Indem. Co. v. Industrial Acc. Comm., 76 Cal.App. 165, 243 P. 892, held the trip primarily a special business errand when the employee, manager of a meat department, who, among other things, purchased the meat for his department, was driving home for the day, intending to stop at a meat wholesaler to notify him to open early the next morning so that the employee could pick up an order before business hours.

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