Western Greyhound Lines v. Industrial Acc. Commission

• Decision Date: 12 March 1964
• Citation: 225 Cal.App.2d 517,37 Cal.Rptr. 580
• Court: California Court of Appeals Court of Appeals
• Parties: WESTERN GREYHOUND LINES, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Geneva I. Brooks, Respondents. Civ. 21622.

Page 580

37 Cal.Rptr. 580

225 Cal.App.2d 517

WESTERN GREYHOUND LINES, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Geneva I. Brooks, Respondents.

Civ. 21622.

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

March 12, 1964.

Henry G. Sanford, San Francisco, for petitioner.

Everett A. Corten, Robert A. Borgen, San Francisco, for respondents (Industrial Accident Comm.).

TAYLOR, Justice.

This case comes before us on a writ of review to determine the legality of an order of the Industrial Accident Commission awarding temporary disability to applicant, Geneva I. Brooks, employed by petitioner, Western Greyhound Lines at the time she was injured. It is urged by the petitioner that the applicant did not prove, as required by Labor Code section 3600, that her injuries arose out of and occurred in the course of her employment and that the Commission's order should therefore be annulled.

The undisputed facts are as follows: On October 3, 1962, the applicant was employed as a bus driver for Greyhound. Her hours of employment were from 5:00 p. m. to 5:00 a. m. At 1:45 a. m., she had completed a trip to San Francisco from Marin County and during her 41 minute layover left the Greyhound bus station at Seventh Street, crossed Seventh and walked about half a block to Foster's Restaurant at the corner of Seventh and Market Streets. She purchased a cup of coffee and sat down at a table where a man unknown to her attempted to converse. Upon her refusal to talk to him, the man attacked applicant causing her disability. She was dressed in her driver's uniform but there is no showing that the assailant was motivated by this fact. The restaurant at the bus depot closes at midnight. However, a snack bar and a coffee vending machine were available on the premises of the depot and a restroom with chairs and benches is located inside the bus terminal. The coffee sold at the snack bar is sometimes good and sometimes bad. Greyhound bus drivers are permitted to leave the premises during the layover period and they are accustomed to going to Foster's Restaurant for coffee, particularly after the restaurant in the bus depot is closed. Greyhound's operating supervisor knew that drivers went to Foster's for coffee. The Commission found that the applicant's disability arose out of and in the course of employment and made an award for temporary disability.

The petitioner contends that the applicant's errand was entirely for her own pleasure and was unrelated in any way to her employment.

The Commission properly relies on Western Pipe, etc., Co. of California v. Industrial Accident Commission, 49 Cal.App.2d 108, 121 P.2d 35, to support its award. There, the employee, a shipwright-carpenter, was allowed a half-hour off for dinner during a four hour overtime period from 4:30 p. m. to 8:30 p. m., for which he was given double pay. The cafeteria on the premises was closed. The employee left the premises to dine at a restaurant located a few miles away and was killed while crossing the street after having parked his car. The court held, in sustaining the Commission's order granting a death benefit, that it was not indispensable to recovery that the employee should be rendering service to the employer. The opinion relies on a line of cases which hold that where the employer pays transportation to and from work, by implied agreement, the employment may be found to continue from the time the employee leaves home until his return (87 A.L.R. 250). The court also approved the Commission's denial of the employer's petition for a rehearing and commented that the Commission would be justified in finding, as a matter of fact, that a slight deviation, such as crossing the street for cigarettes at the time of the accident, as had been alleged, was reasonably contemplated by the employment and would not take an employee outside his employment. This case has been cited with approval by the Supreme Court on several occasions (Pacific Emp. Ins. Co. v. Industrial Acc. Comm., 26 Cal.2d 286, 158 P.2d 9, 159 A.L.R. 313; Reinert v. Industrial Acc. Comm., 46 Cal.2d 349, 294 P.2d 713; Leffert v. Industrial Acc. Comm., 219 Cal. 710, 28 P.2d 911).

We do not agree, as contended by the petitioner, that the holding in Western Pipe and Steel hinges upon the payment of double pay for overtime. The court said at page 113 of 49 Cal.App.2d, at page 38 of 121 P.2d: 'Obviously, if an employee is deemed to be acting in the course of his employment in going to or coming from his work when his compensation covers that time, it would seem clear that he is likewise acting within the course of his employment...