State Comp. Ins. Fund v. Workmen's Comp. Appeals Bd.

• Decision Date: 11 January 1973
• Court: California Court of Appeals Court of Appeals
• Parties: STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents. Civ. 31871.

Page 39

106 Cal.Rptr. 39

29 Cal.App.3d 902

STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents.

Civ. 31871.

Court of Appeal, First District, Division 2, California.

Jan. 11, 1973.

Hearing Denied March 29, 1973.

Franklin Grady, San Francisco, for respondent Workmen's Compensation Appeals Board.

Morgan, Beauzay & Hammer, Victor H. Beauzay, San Jose, for respondent James M. McGrew.

T. Groezinger, James J. Vonk, George S. Bjornsen, W. R. Lowndes, San Francisco, for petitioner.

KANE, Associate Justice.

Petitioner carrier seeks review of a decision of the Workmen's Compensation Appeals Board upholding an award of compensation to James M. McGrew, a 33-year-old San Jose police officer who sustained injury in an accident while driving to work in his own automobile. Petitioner contends that the injury did not arise out of and in the course of his employment and that the award should be annulled.

The board, in denying the carrier's petition for reconsideration, concluded that because the applicant was traveling conspicuously on a public street, in uniform, carrying his pistol, and ready to render assistance to members of the public in the field of law enforcement, if needed, he was engaged "in conduct reasonably directed toward the fulfillment of his employer's requirements, performed for the benefit and advantage of the employer," and that the injury was compensable under the exception to the going and coming rule established in Garzoli v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 502, 86 Cal.Rptr. 1, 467 P.2d 833.

We summarily denied the carrier's petition for a writ of review. The Supreme Court granted a hearing, transferred the cause, and then retransferred the cause to us, with directions to issue a writ of review in light of Garzoli.

This case involves another application of California's much maligned 'going and coming' rule. Despite widespread criticism of the 'arbitrary, judge-made . . . rule' (Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670, 673, 87 Cal.Rptr. 193, 470 P.2d 1), its continuing viability was recently reaffirmed in Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 104 Cal.Rptr. 456, 501 P.2d 1176.

Ordinarily, under the going and coming rule, an injury which occurs while an employee is driving to or from work is not compensable. The rule, however, is subject to many exceptions. (Hinojosa v. Workmen's Comp. Appeals Bd., supra at p. 156, 104 Cal.Rptr. 456, 501 P.2d 1176; Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 866, 101 Cal.Rptr. 105, 495 P.2d 433; Guest v. Workmen's Comp. App. Bd., supra at p. 672, 87 Cal.Rptr. 193, 470 P.2d 1; Garzoli v. Workmen's Comp. App. Bd., supra at p. 505, 86 Cal.Rptr. 1, 467 P.2d 833.)

In Garzoli, compensation was awarded to a policeman, killed on his way home from his normal duty station at the normal time, who was required to wear his official uniform as he conspicuously rode to and from work on his private motorcycle.

The carrier contends that the appellant's case is distinguishable from Garzoli in that (1) applicant, riding in his automobile, was not as conspicuous as Garzoli was on his motorcycle, and (2) Garzoli was required to wear his uniform on his way to and from work, since there were no lockers at the police station where he could leave his uniform, whereas applicant wore his uniform to work as a matter of choice.

Applicant's injury was sustained about 9:30 p.m. while on a district route from his home to the station to begin his shift at the normal time of 10 p.m. The carrier argues that, unlike Garzoli, McGrew could not have been identified as a policeman because the indicia of his occupation were 'hidden in a dark, closed car, at night.' However, a close reading of Garzoli reveals that the accident occurred during darkness also--i.e., in the early morning hours after his shift ended at midnight. Thus, insofar as the element of conspicuousness is concerned, the only distinction between Garzoli and the instant case is that Garzoli was riding his own personal motorcycle whereas McGrew was driving his own personal automobile.

With the substantial and increasing number of motorcycle operators using our city streets, many of whom wear helmets and clothing similar to, or at least not readily distinguishable from, those worn by police officers, it would be a matter of pure conjecture as to which--the automobile driver or the motorcycle operator--was the more conspicuous.

Further, in Guest v. Workmen's Comp. App. Bd., supra, 2 Cal.3d 670, 674, 87 Cal.Rptr. 193, 470 P.2d 1, the court, under circumstances we shall hereafter relate, found the going and coming rule inapplicable to a policeman injured on his way to work despite the fact that he was riding in an automobile rather than on a motorcycle. We therefore reject the petitioner's first argument. ¹

Having disposed of the carrier's first argument, we turn to the second and more serious argument, whether the going and coming rule is applicable when the employer provides the officer with a locker for his uniform and facilities for changing his clothes at the station, but the officer nevertheless chooses to change into his uniform at home and to wear it on his way to and from the police station.

In Garzoli, testimony from the police chief established that there was no adequate place for a police officer to change from street clothes into his uniform, or vice versa, at the police station, and that it was with his consent that an officer might wear his uniform and carry his pistol in going and coming between his home and the police station.

In Guest, the officer had a locker at the police station and usually dressed on the job, but at the time of injury had been assigned to perform duties at the Los Angeles County Fair and instructed to go directly to the fairgrounds each day. Guest testified that he had not seen any place at the fairgrounds available for a police officer to change into uniform and no evidence was introduced showing that there were any such facilities. He had been told by his superiors that he was considered on duty while in uniform, and the court found that since he had been instructed to report directly to the fairgrounds, he was justified in putting on his uniform at home.

The latest Supreme Court case dealing with the going and coming rule is Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 104 Cal.Rptr. 456, 501, P.2d 1176. ² In Hinojosa, at...