Ward v. Cardillo

• Decision Date: 19 April 1943
• Docket Number: No. 8275.,8275.
• Citation: 77 US App. DC 343,135 F.2d 260
• Parties: WARD v. CARDILLO et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

77 US App. DC 343, 135 F.2d 260 (1943)

WARD v. CARDILLO et al.

No. 8275.

United States Court of Appeals for the District of Columbia.

Argued February 16, 1943.

Decided April 19, 1943.

Mr. Nicholas J. Chase, of Washington, D. C., with whom Mr. Robert E. Lynch, of Washington, D. C., was on the brief, for appellant.

Messrs. Edwin A. Swingle and Ward E. Boote, Chief Counsel, United States Employees' Compensation Commission, both of Washington, D.C., with whom Messrs. Edward M. Curran, United States Attorney, Bernard J. Long, Assistant United States Attorney, and Ernest A. Swingle, all of Washington, D. C., were on the brief, for appellees.

Before GRONER, Chief Justice and VINSON and EDGERTON, Associate Justices.

GRONER, C. J.

This is a compensation case under the Longshoremen's Act¹ in which the Deputy Commissioner rejected the claim. The District Court affirmed and the claimant appeals.

The uncontradicted evidence shows that the claimant lived in Loudoun County, Virginia, some forty miles from Washington, on the high road between Winchester and Washington. Prior to the end of the year 1940 he was in the habit of driving his own car to and from work, reporting each morning at 7 o'clock and leaving each evening around 6 or 6:30. Toward the end of 1940 he expressed dissatisfaction with his salary and requested an increase. His employer replied that he could not afford to pay more, but that in lieu of an increase he would furnish him transportation to and from his place of business in the employer's trucks, which passed his home regularly twice a day, thereby saving him approximately $5 a week. This offer was accepted and the arrangement made which continued until the injury. Ordinarily a Washington-bound truck passed claimant's home between 7 and 7:30 each morning, and a Roanoke-bound truck returning left Washington between 6 and 7 each evening. The arrangement was that claimant be ready at his home every morning at 7 o'clock and wait for the truck, the driver of which had instructions to stop and pick him up. Claimant customarily sat in his kitchen, from which he could see down the high road. When he observed the truck approaching he would leave the house, cross the road to where it stopped and board it. On the morning of the injury he saw the approaching truck and immediately left the house to cross the road, when he was struck by another vehicle, some 25 or 30 feet from the approaching truck, then drawing off the road to take him aboard.

On these facts the Deputy concluded that the employment had not commenced at the time of the injury and hence that the injury did not arise out of and in the course of the employment, and denied compensation. The single question is whether this conclusion is correct.

Much of the argument in this Court for appellees is based upon the principle that the Commissioner's findings, when supported by substantial evidence, are not subject to review by this Court. But we think this argument has no proper place here, for the question is not one of fact but of law. Considered in this view, appellees argue that since the transportation of appellant had not begun at the time of the injury, therefore the employment had not begun. It is said that employment begins when the employee has either entered the industrial premises, or in a case such as this, when transportation has started, and that in the present case there is no good reason to say that transportation started at any time before appellant actually boarded the conveyance furnished for him.

The question is not wholly without difficulty, but after full consideration of it and an examination of the cases we conclude that both principle and authority are contrary to the Deputy's holding. There are no applicable decisions in any of the Federal Circuits, which is easily understood, since only in this jurisdiction could a question of this nature arise under the Longshoremen's Act. But in a case from this Court, the Supreme Court of the United States, in 1933,² stated the general rule in these words: "* * * injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment citing cases. Ordinarily the hazards they encounter in such journeys are not incident to the employer's business. But this general rule is subject to exceptions which depend upon the nature and circumstances of the particular employment. `No exact formula can be laid down which will automatically solve every case.' Cudahy Packing Co. v. Parramore, 263 U.S. 418, 424, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532. See, also, Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402. While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. And agreement to that effect may be either expressed or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service, and hence within the purview of the Compensation Act." (Citing cases).

In Lake v. Bridgeport, 102 Conn. 337, 128 A. 782, the Supreme Court of Errors of Connecticut recognized the general rule as stated in the Voehl case, supra, but announced the four following exceptions:

(1) Where the employment requires the employee to travel on the highways; (2) where the employer contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls, as in the case of firemen; (4) where the employee uses the highway to do something incidental to his employment, with the knowledge and approval of the employer.

The instant case clearly falls within the second exception. As we have seen, the employer furnished transportation in lieu of a requested increase in salary. In effect he said to the employee: "Instead of paying you $5.00 a week additional I shall save you $5.00 a week that you are now required to spend, and to this end shall instruct my truck driver to pick you up at your home in the morning and drive you back home in the evening." In carrying out this agreement with respect to the morning travel, the truck, by reason of the rules of the road, could stop only on the far side of the highway upon which appellant lived. This involved the necessity of appellant's crossing the road and subjecting himself to the risks attendant to such crossing. We think these risks were incident to transportation in the truck, were assumed for the mutual convenience of ...