Wilson v. Industrial Commission

• Decision Date: 01 July 1949
• Docket Number: 7191
• Citation: 207 P.2d 1116,116 Utah 46
• Court: Utah Supreme Court
• Parties: WILSON et al. v. INDUSTRIAL COMMISSION et al

207 P.2d 1116

116 Utah 46

WILSON et al. v. INDUSTRIAL COMMISSION et al

No. 7191

Supreme Court of Utah

July 1, 1949

Proceeding under the Workmen's Compensation Act by Roberta Barney, a widow, and Beverly Barney, minor daughter of Frank Barney deceased, claimants, for death of Frank Barney, deceased opposed by Earl W. Wilson, doing business as Wilson's Used Cars, employer, and Hartford Accident & Indemnity Company, insurance carrier. The Industrial Commission of Utah awarded compensation, and the employer and insurance carrier bring original proceeding for review of such order.

Award annulled.

Arthur E. Moreton, Salt Lake City, Elias L. Day, Salt Lake City, for plaintiffs.

Grover A. Giles, Attorney General, Callister, Callister & Lewis Salt Lake City, C. N. Ottosen, Salt Lake City, for defendants.

PRATT C. J. and McDONOUGH, J., concur.WOLFE, J., not participating.

OPINION

LATIMER, Justice.

This is a writ of review from an order of the Industrial Commission granting an award to Roberta and Beverly Barney as dependents of Frank Barney, deceased. It is admitted that Earl W. Wilson was an employer within the meaning of the Workmen's Compensation Act, U.C.A.1943, 42-1-1 et seq.; that Hartford Accident & Indemnity Company was his insurance carrier; that decedent Frank Barney was one of Wilson's employees; and that Roberta and Beverly Barney, as surviving widow and minor daughter of decedent Frank Barney, were his dependents.

Plaintiff Wilson was engaged in the used car and automotive repair business and operated business establishments in Salt Lake City, Magna and Ogden, Utah, as well as a shop in Phoenix, Arizona. Decedent had been intermittently employed by Wilson for some two or three years preceding his death and just prior to his death he had been placed on Wilson's regular pay roll as a mechanic and foreman. During the three or four days preceding his death, his duties had been to 'get the Magna shop going', and the evidence indicates the locale of Wilson's work was not to be changed until the car, later referred to, was repaired and returned to Salt Lake City. The day before the accident occurred, Wilson had removed an automobile from his Ogden shop to his recently opened Magna shop for repair. That evening Wilson instructed decedent to go out to Magna the next morning and bring this same automobile back to Salt Lake City by noon or as near thereto as possible, but to complete all repairs before bringing it back. Wilson testified that he did not know that night whether the automobile had been repaired and made ready to return, but that before bringing it to Salt Lake City decedent was expected to make such repairs as were found to be necessary. The method of returning the automobile was left entirely up to decedent.

The next morning, January 9, 1947, decedent sustained fatal injuries while riding as a passenger in the automobile of one Reed A. Foote, a mechanic hired by Wilson to assist decedent. At the time of the accident, Foote and decedent were traveling from Salt Lake City to Wilson's Magna shop. They had left their homes at about 8:00 o'clock that morning and the accident occurred approximately fifteen minutes thereafter. Wilson testified that although the decedent was ordinarily expected to commence his day's work [116 Utah 49] at 8:00 a. m. each morning he had no regular hours and could adjust his time to the work that had to be done; and that although the decedent and Foote had furnished their own transportation during the three or four days they had been operating Wilson's Magna shop, they could have used one of Wilson's automobiles had they requested so to do.

The only issue before this court is whether decedent's fatal injuries were sustained in an accident arising out of, or in the course of, his employment. The parties are in substantial agreement concerning the principles of law involved, but divide upon the conclusion to be reached under the facts of the case. The rule in this jurisdiction and in the United States generally is that an injury sustained by an employee while going to or returning from work is not an injury arising out of or in the course of his employment. Admitting the general rule, defendants rely upon one of its recognized exceptions, namely, that an injury sustained by an employee, either on his employer's or his own time, arises out of his employment if the employee is injured while upon a mission for the employer.

The principle involved in this case has been before this court on several occasions and there are three cases which throw some light on the rule to be followed. The first of these is Chandler v. Industrial Commission, 60 Utah 387, 208 P. 499, 500. In that case the employer's delivery truck was kept in a garage behind his home. Chandler, who was employed as a deliveryman, was bitten by a mad dog while proceeding on a direct route from his home to his employer's garage to get a truck in order to commence his day's activities. The holding of the court in that case is indicated by the following:

'While it is true, as said in Ocean Accident & Guarantee Co. v. Industrial Accident Commission, 173 Cal. 313, 159 P. 1041, L.R.A. 1917B, 336, 'in the very broadest sense, * * * an injury which happens to a man who is on his way to his place of employment is an injury 'growing out of and incidental to his employment,' since a necessary part of the employment is that the employe shall go to and return from his place of labor,' we do not base our conclusion upon that ground, but on the ground that, under the facts of this particular case, Chandler's going to the garage was a distinct part of a definite duty -- more than merely going to work, and actually an errand for his employer at the time of the accident.'

Either the holding in Chandler v. Industrial Commission case has been modified by or the facts differentiate it from later cases. In that case the court found that the employee-employer relationship commenced when the employee left his home to proceed to the garage. His time of employment commenced at 7:00 o'clock in the morning and the court found he was injured during working hours. Occasionally he took merchandise home with him and made delivery the following morning. By a course of conduct the parties created an employer-employee relationship which encompassed travel from Chandler's home to the garage. Under those facts and circumstances, this court held he was subject to control and supervision of the employer from the time he left his home and, accordingly, was in the course of his employment at the time of his injury.

In Kahn Brothers v. Industrial Commission, 75 Utah 145, 283 P. 1054, the employee Doe customarily attended to certain of his employer's uptown business while traveling between his home and place of work during his lunch period. On the day of the accident Doe had visited the bank to make his employer's deposit, had eaten his lunch at home and then upon leaving home was proceeding by the most direct route to the post office for the purpose of collecting his employer's mail when he was struck by an automobile. The errands Doe performed were part of his duties required under the terms of his employment and were performed pursuant to the employer's direction. This court held that Doe's injury arose out of and in the course of his employment. The errands he was required to perform during his lunch hour maintained the employer-employee relationship as the employee was doing more than merely returning to his employer's place of business. He was, in addition, performing one of the duties of his employment. The special mission rule retains the relationship between the parties and that rule required a holding in that case that the employee was in the course of his employment at the time of his injury.

The facts in the case of Fidelity & Casualty Co. v Industrial Commission, 79 Utah 189, 8 P.2d 617, 619, appear to more nearly approximate the facts of this case. The employee in that case was a delivery boy whose duties required him to stop each morning at a hotel and railroad station to pick up films that would later be developed by his employer. He was required to report to work at 8:00 a. m. and pickups were expected to be made before that time. While riding his bicycle to work at approximately 7:30 a. m. one morning, he collided with a streetcar and was fatally injured. The point of collision was...