Westinghouse Elec. Corp., Elevator Const. Division v. Industrial Acc. Commission

• Decision Date: 24 January 1966
• Citation: Westinghouse Elec. Corp., Elevator Const. Division v. Industrial Acc. Commission, 48 Cal.Rptr. 758, 239 Cal.App.2d 533 (Cal. App. 1966)
• Court: California Court of Appeals
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, ELEVATOR CONSTRUCTION DIVISION, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Virgil C. Blanchard, Jr., Respondents. Civ. 29392.

Page 758

48 Cal.Rptr. 758

239 Cal.App.2d 533

WESTINGHOUSE ELECTRIC CORPORATION, ELEVATOR CONSTRUCTION DIVISION, Petitioner, v.INDUSTRIAL ACCIDENT COMMISSION of the State of California and Virgil C. Blanchard, Jr., Respondents.

Civ. 29392.

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

Jan. 24, 1966.

Hearing Denied March 22, 1966.

Poindexter & Barger, by Alfred B. Doutre, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, for respondents.

ROTH, Presiding Justice.

This is a proceeding to review an order of the Industrial Accident Commission holding an employee entitled to compensation for injuries sustained in an automobile accident which occurred while he was traveling to work.

Virgil C. Blanchard, Jr., an employee of petitionerWestinghouse Electric Corporation, was injured in an automobile accident while driving from his home to work at a job site located at 9300 Wilshire Boulevard in the city of Beverly Hills.Transportation to and from work was not furnished by the employer, and it exercised no control over the means of transportation or route chosen by the employee.The employee was not compensated or entitled to be compensated for the time required to travel to and from work.He was, however, paid carfare of 60 cents per day pursuant to a contract between his union and employer.The contract contained a clause entitled 'Traveling Time and Expense' which provided for the payment of allowances for travel and/or expense depending upon the location of the job site.In Zone A, an area within a five mile radius of the Los Angeles City Hall, employees were required to pay the traveling expenses.In Zone 1, an area within a ten mile radius, wherein the job site in the present case was located, employees were entitled to 60 cents 'round trip' travel expense per day.In zones covering greater distances, provision was made for higher allowances for travel expense and in some instances for allowances for travel time as well.Blanchard was reimbursed $2.40 carfare for the week in which the accident occurred, and no control was exercised by his employer over the use of the money he was so paid.

Petitioner contends that since the accident occurred while Blanchard was going to work, his injuries did not arise out of and in the course of his employment.On the other hand, Blanchard contends that inasmuch as he was paid carfare or a specified amount for travel expense, his employment embraced the time he was en route to work.

The established rules which govern the compensability of injuries sustained by an employee while going to or returning home from work are set forth in Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 35, 215 P.2d 736, 737, as follows: 'It is the general rule that injuries sustained by an employee going to or returning from work are not compensable under the Workmen's Compensation Act, § 3201 et seq.The rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work.California Casualty Indemnity Exchange v. Industrial Accident Com., 21 Cal.2d 751, 753, 754, 135 P.2d 158.However, the employer may agree, either expressly or impliedly, that the relationship shall continue during the period of 'going and coming,' in which case the employee is entitled to the protection of the acts during that period.Such an agreement may be inferred from the fact that the employer furnishes transportation to and from work as an incident of the employment.California Casualty Indemnity Exchange v. Industrial Accident Com., 21 Cal.2d 461, 132 P.2d 815;Trussless Roof Co. v. Industrial Accident Com., 119 Cal.App. 91, 6 P.2d 254;cf.Breland v. Traylor Eng. etc. Co., 52 Cal.App.2d 415, 126 P.2d 455.* * * [S]uch an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.'

An agreement that the employment relationship shall continue during the period of travel to and from work cannot be inferred, however, from the mere fact that the employer pays the cost of public transportation or an amount for travel expense which is not paid in lieu of or as a means of discharging a contractual obligation to furnish transportation.In Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 482, 67 S.Ct. 801, 809, 91 L.Ed. 1028, the court stated, 'To be sure, there are many holdings to the effect that, where the employer merely pays the costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment; there must be something more than mere payment of transportation costs.'The same view was expressed by the California Supreme Court in Smith v. Industrial Accident Commission, 18 Cal.2d 843, 847, 118 P.2d 6, 8, as follows: 'It also may be pointed out that the fact that the employer reimbursed the employee for his fare on the ferry from the island to San Francisco would not of itself cause the injury to arise out of the course of employment.The payment to the employee of the cost of public transportation to and from his place of residence to the place of work does not ordinarily in itself, furnish a basis for concluding that an injury sustained during such...