Whitehurst v. Rainbo Baking Co.

• Decision Date: 19 September 1962
• Docket Number: No. 7072,7072
• Citation: 70 N.M. 468,374 P.2d 849,1962 NMSC 126
• Parties: J. T. WHITEHURST, Claimant, Plaintiff-Appellant, v. RAINBO BAKING COMPANY, Employer, and Royal Globe Insurance Group, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 849

374 P.2d 849

70 N.M. 468

J. T. WHITEHURST, Claimant, Plaintiff-Appellant, v. RAINBO BAKING COMPANY, Employer, and Royal Globe Insurance

Group, Insurer, Defendants-Appellees.

No. 7072.

Supreme Court of New Mexico.

Sept. 19, 1962.

Harold O. Gore, Clovis, Scott H. Mabry, James L. Brandenburg, Albuquerque, for appellant.

Rodey, Dickason, Sloan Akin & Robb, James C. Ritchie, Joseph J. Mullins, Albuquerque for appellees.

COMPTON, Chief Justice.

This is a workmen's compensation action. Claimant appeals from a judgment denying compensation for injuries suffered by him as the result of an accident in Clovis allegedly arising out of and in the course of his employment.

The issue to be decided on this appeal is whether an injury sustained by an employee while taking a coffee break off of the employer's premises during his working hours is an injury arising out of and in the course of the employment under the so-called personal comfort doctrine.

Appellant was employed as a mechanic by appellee-employer. His regular working hours were from 7 a. m. to 6 p. m. with an hour off for lunch between 12 noon and 1 p. m. In addition, he was subject to call 24 hours a day to repair any mechanical failures suffered by the employer's delivery trucks. Most of his work was performed in a garage on appellee's premises but on occasion he was required to do this work elsewhere. His salary was $95.00 per week regardless of the number of hours he worked. Appellant customarily took coffee breaks during his regular working hours at public places in the vicinity of the employer's place of business.

On March 8, 1961, between 9 and 9:30 p. m., in response to a call from one of employer's drivers that a truck needed repairs, he returned to the employer's premises and, finding it necessary to install a new generator, called a parts-supplier. Upon being informed there would be a twenty-minute wait until the supplier opened his garage to obtain the part, appellant and the driver of the truck being repaired started across the highway to a restaurant to get a cup of coffee and appellant was struck and seriously injured by an automobile while in the center of the highway.

These are the facts substantially as found by the court below. They are undisputed and, based thereon, the trial court concluded that the accident did not arise out of and in the course of the employment; that the injuries suffered by appellant did not result from risk reasonably incidental to his employment; and that the risk of being struck by an automobile while crossing the highway was not a danger peculiar to his work but was a risk common to the public generally.

It is appellant's position that all coffee breaks taken by him while he was in the course of his employment were taken with the implied consent of his employer and were reasonably incident to the employment under the personal comfort doctrine.

Appellees contend that this doctrine is not embraced within the language of our workmen's compensation statute; that appellant had no implied consent to take coffee breaks after regular hours, was not being paid at the time, was not where his work required him to be, was not acting under the control or direction of his employer, and that the application of the personal comfort doctrine would eliminate the requirement that an accidental injury must 'arise out of' as well as in the course of the employment.

We are concerned only with the court's conclusions. Conclusions of law are reviewable by the supreme court, and where the facts are not in dispute this court is not bound by the conclusions of the trial court but may independently draw its own legal conclusions. Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002; Cavness v. Industrial Commission, 74 Ariz. 27, 243 P.2d 459.

This court previously has not considered the so-called personal comfort doctrine and its progress is worth reviewing. In 1 Larson's Workmen's Compensation Law, Sec. 21.00, p. 297, the doctrine is defined as follows:

'Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.'

A review of the texts and decisions reveals that the application of the doctrine has been generally limited to injuries occurring on the employer's premises during regular working hours, and restricted to those cases where the acts are reasonably necessary to the employee's health and comfort. The early basis for compensation under the doctrine was that the doing of an act not prohibited by the employer and reasonably necessary, regardless of an employee's negligence, was 'incidental to the employment.' So where an accident occurred on the premises before or after the regular working hours, compensation, nevertheless, could be awarded under the going and coming rule. 1 Larson's Workmen's Compensation, Sec. 21.21(a); 58 Am.Jur., Workmen's Compensation, Sec. 228; 99 C.J.S. Workmen's Compensation Sec. 220c, and cases cited therein.

With respect, however, to off the premises injuries, the courts, barring exceptional circumstances, have refused to apply the doctrine, on the theory that the employee is not performing service for his employer and the latter has no control over the employee. Salmon v. Bagley Laundry Co., 344 Mich. 471, 74 N.W.2d 1. Such injuries have generally been characterized as falling within the limitations of the going and coming rule. Wisconsin Law Review, Vol. 1960, pp. 98 et seq. But courts following this rule have made exceptions for a variety of reasons, such as where the employee is performing services for the employer in a direct sense. Locke v. Steele County, 223 Minn. 464, 27 N.W.2d 285; Anderson v. Kroger Grocery & Baking Co., 326 Mich. 429, 40 N.W.2d 209; where the employee acts at direction of employer, Shoemaker v. Snow Crop Marketers Division, 74 Idaho 151, 258 P.2d 760. The nature of the employment has been considered significant as where a bus driver has been compensated for an injury sustained while crossing the street for a snack or drink after leaving his vehicle. City Bus Co. v. Lockhart, 204 Okl. 314, 229 P.2d 586.

Those states which adhere to the rule that off the premises injuries are noncompensable seem to make every effort to find facts that will take the case out of the rule. Such is that trend of recent decisions. New York and Wisconsin, in particular, have expanded the doctrine to the field of off the premises injuries. While New York has no statutory going and coming rule, it does have an express provision that an employee in the course of his employment may be compensated when injured off the premises. New York Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, Sec. 2(4). The Act requires no exceptional circumstances but considers the question purely as one of deviation, that is, whether the brief departure from actual work is so unreasonable as to interrupt the employment. Consequently, an employee may recover where his off the premises acts are consented to by the employer and are reasonable. Bodensky v. Royaltone, Inc., 5 A.D.2d 733, 168 N.Y.S.2d 908; Caporale v. Dept. of Taxation & Finance, 2 N.Y.2d 946, 162 N.Y.S.2d 40, 142 N.E.2d 213.

Wisconsin, in Krause v. Western Casualty & Surety Co., 3 Wis.2d 61, 87 N.W.2d 875, allowed compensation to an employee who was injured while riding in his employer's car, at employer's request, to a restaurant for coffee, during regular working hours. The court first applied the going and...