Smith v. Workmen's Compensation Appeals Bd.

• Decision Date: 10 December 1968
• Citation: 447 P.2d 365,73 Cal.Rptr. 253,69 Cal.2d 814
• Court: California Supreme Court
• Parties: , 447 P.2d 365 Jo Anne SMITH, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, County of Ventura, et al., Respondents. L.A. 29568.

Page 253

73 Cal.Rptr. 253

69 Cal.2d 814, 447 P.2d 365

Jo Anne SMITH, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, County of Ventura, et al., Respondents.

L.A. 29568.

Supreme Court of California In Bank.

Dec. 10, 1968.

Rehearing Denied Jan. 8, 1969.

Sydney Halem for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Sheldon M. Ziff, Los Angeles, T. Groezinger, Loton Wells, G. K. Bogue, San Francisco, and Arthur C. Jones, Jr., for respondents.

TOBRINER, Justice.

Petitioner seeks review of the appeals board's order denying reconsideration of an opinion and order by a referee denying workmen's compensation benefits on the ground that the death of petitioner's husband did not arise out of his employment. Since the accident occurred when the employee drove his car to the employer's premises pursuant to the employer's requirement that the employee furnish his own car, we hold that the so-called going and coming rule does not bar coverage.

Petitioner's husband, Charles Smith, worked as a social worker for Ventura County. In a one-car auto accident which occurred while he was en route from his home to his office at about 7:35 a.m. on December 27, 1965, Smith incurred injuries from which he subsequently died. Mrs. Smith filed this application for temporary disability, medical, and death benefits.

A referee appointed by the board heard the case and issued an opinion and order denying recovery. Petitioner filed a petition for reconsideration which the board denied. She then unsuccessfully sought review in the Court of Appeal. Although the report of the referee on the petition for reconsideration does discuss the case in somewhat greater detail, the orders of both the referee and the board state no more than that the injury did not arise out of the course of employment.

Under the well established going and coming rule, an employee does not pursue the course of his employment when he is on his way to or from work. (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd. (1967), 66 Cal.2d 944, 946, 59 Cal.Rptr. 622, 428 P.2d 606.) In a number of cases we have established exceptions to this rule, such as those in which the employer defrayed the travel expenses (Kobe v. Industrial Acc. Comm. (1950), 35 Cal.2d 33, 35, 215 P.2d 736) and those in which the employee engaged in a special errand for his employer. (Zenith Nat. Ins. Co. v. Workmen's Comp. App. Bd., supra, 66 Cal.2d 944, 59 Cal.Rptr. 622, 428 P.2d 606; Schreifer v. Industrial Acc. Comm. (1964), 61 Cal.2d 289, 291, 38 Cal.Rptr. 352, 391 P.2d 832.) Petitioner contends that we should recognize another exception to the rule in the instant case: that at the time of the accident Smith was engaged in the course of his employment inasmuch as he was bringing his car to work as required by his employer. ¹ This contention raises questions of both fact and law.

We turn first to the factual issue. Although the board argues that substantial evidence supports the conclusion that Smith was not required to bring his car to work for use during the day, the record does not bear out this assertion. Indeed, the board rendered no finding to that effect; the board's interpretation of the going and coming rule would render any such finding unnecessary; the referee's report merely recited some of the evidence on this point. In any event, as well shall show, the evidence compelled the conclusion that Smith's employer required him to bring his car to work on the morning of December 27th.

Smith's immediate supervisor, Mrs. Blema Damitio, testified that every worker was required to furnish his own car, first, so that he could visit his clients on field days, and, second, so that he would be available to see clients in cases of emergency on regular office days. December 27th was one of Smith's regular office days. In addition, Mrs. Damitio stated that although four or five county cars were available if requested in advance by a worker whose car had broken down, Smith, to her knowledge, had never requested use of a county car.

The board suggests that Mrs. Damitio's testimony conflicted with the testimony of a Mr. Fowler. A safety and claims officer of the County of Ventura, Fowler stated that he had 'something to do with the use of county cars' only indirectly; he kept insurance records but not separate personnel records concerning cars. Fowler attested that civil service regulations do not provide that a county social worker must have a car of his own; he did not suggest, however, that the regulations contained all of the rules relating to employment. Fowler also said that any social worker can drive a county vehicle if he so desires.

Fowler proceeded to testify that he could not say without checking his records whether Any county social workers had in fact used county cars during the month of December 1967, and that he knew little or nothing about the procedures of the county welfare department for obtaining a car. When confronted with Mrs. Damitio's testimony, Fowler indicated he thought it was not wholly correct. Asked to state the basis of his conclusion, he said, 'Like I said, there is no shortage of vehicles. I can see no reason to limit a County employee to using their own cars. It isn't necessary.' Fowler also indicated he did not know the number of social workers employed by the Department of Social Welfare.

Fowler's testimony does not constitute substantial evidence that Smith was not required to provide his own car. Fowler had no idea of the content of the actual rules of the Department of Social Welfare; he could say no more than that there were 'plenty' of cars; he presumed from this information that the department need not have required, and therefore did not require, social workers to furnish their own cars. Fowler's testimony presents no more than a conclusion. Fowler apparently did not know the number of cars available to the department, or the number of social workers who needed cars. Moreover, even assuming a surplus of cars, the department might nonetheless have required social workers to provide their own. Thus Fowler's garnered information could readily be reconciled with Mrs. Damitio's direct statements. In view of the board's failure to offer any basis for the conclusion that Mrs. Damitio misunderstood the department rules, her specific testimony on this question constitutes substantial evidence. The rather remote inferences suggested by Fowler do not. (Compare Borak v. H. E. Westerman Lumber Co. (1953), 239 Minn. 327, 330 et seq., 58 N.W.2d 567.) Accordingly, the information provided by Fowler does not conflict with the testimony of Mrs. Damitio.

The social worker who replaced Smith, Mrs. Joan Sheldon, testified that the decision as to whether her own car would be used for field work was left to her 'discretion.' Respondents offered no evidence, however, that the department applied the same requirement to Mrs. Sheldon in June 1967 as it exacted of Smith in December 1965. To the contrary, the record contains the direct testimony of Smith's supervisor that she required him to furnish the car, while, since Mrs. Damitio left the department before November 1966, Mrs. Sheldon worked under a different supervisor than Smith.

Mrs. Sheldon's own statement that it was 'unlikely' that the department possessed sufficient cars to furnish all of its social workers with cars effectively forecloses the possibility that All social workers were entitled to the use of county cars. Further, Mrs. Sheldon referred only to the rules under which she worked; not to the rules applied to social workers in general. Accordigly, Mrs. Sheldon's testimony as to her supervisor's instructions in 1967 after the accident does not raise a conflict with Mrs. Damitio's testimony as to her requirements of Smith in 1965 before the accident.

Concluding, as we must, that the department required Smith to have his car available on the job on the morning of December 27th, we turn to the legal issue: whether this requirement brought the trip within the course of his employment. Respondent correctly notes that we have previously held that such an obligation does not necessarily mean that the trip comes within the course of employment. (Postal Tel. Cable Co. v. Indus. Acc. Comm. (1934), 1 Cal.2d 730, 37 P.2d 441, 96 A.L.R. 460.) Accordingly, the viability of the board's order depends upon the continued vitality of Postal Telegraph.

In Postal Telegraph the company employed one Mr. Mahret as a motorcycle messenger and required him to furnish his own motorcycle. In a morning traffic collision while en route to work, Mahret suffered injury. The Industrial Accident Commission awarded compensation; following a hearing in this court we affirmed the award without dissent. On rehearing, however, as dissenting Justice Langdon explains, 'Justices Thompson and Seawell, who participated in the original decision, were not present at the oral argument * * * and hence (were) disqualified * * *.' (Id. at p. 735, at p. 444 of 37 P.2d.) Justice Curtis was absent. Justice Spence of the District Court of Appeal, serving as a Justice of the Supreme Court pro tem., joined three of the four remaining Justices in reversing the decision and denying recovery. Justice Preston, speaking for the court, noted that many other states denied compensation in such situations, and ruled that although Mahret was required to have his motorcycle at his employer's office at 8 a.m., he was not obligated to drive it there.

Postal Telegraph did not lead to a long line of California decisions relying upon, or applying, the rule there stated. ² In the 34 years since Postal Telegraph only two California decisions, one in 1935 and one in 1941, depend upon its holding, and both of them were decided by the Industrial Accident Commission. ³ In Langendorf United Bakeries, Inc. v. Indus. Acc. Comm. (1935) 6 Cal.App.2d 46, 43 P.2d 1106, the court relied unnecessarily on Postal Telegraph, since in that case the employer...