I dissent.
The constitution authorizes the legislature to create a liability for compensation to be made to an employee, by the community at large through the medium of the employer, for an injury to such employee incurred in the course of hisemployment. (Const., art. XX, sec. 21, as adopted in 1911;Western Indemnity Co. v. Pillsbury, 170 Cal. 694, 707, [151 P. 398].) To this the legislature has added the condition that the injury must be one that was sustained by accidentarising out of the employment. (Workmen's Compensation Law of 1913, (Stats. 1913, p. 283), sec. 12 [a]; Act of 1917 (Stats. 1917, p. 834), sec. 6 [a].) Gallia was employed to work in the factory of the plaintiff. The only entrance to the factory was a gate on the easterly side. From this gate a pathway extended easterly across the adjacent tracks of the Southern Pacific Railroad Company into the end of a public street. This path was commonly used for access to the factory by all persons desiring to enter, and there was no other way or means of access. In going from his home to the factory Gallia was crossing the tracks aforesaid upon this path and while so doing he was struck by a Southern Pacific engine and killed.
His contract of employment did not provide that he was to be considered in service while going to the factory from his home, nor did it require him to peform any service while crossing said tracks along said path. It did not specify the route he was to travel in going to and from the factory. At the time he was struck he was not engaged in any work or service for the plaintiff; he had not yet reached the place of employment or the factory, but was still on his way thereto. The engine belonged to the Southern Pacific Company and was in no way connected with the business of the plaintiff or the work Gallia was to do.
The accident had no more to do with his employment than would an accident which occurred any place on the public *Page 305 street by which he reached the path. His act in going there may have been a thing done "in the course of his employment," according to a few rather strained constructions of that phrase in some of the decisions, but that meaning is against the weight of authority. (Bradbury's Workmen's Compensation Law, 3d ed., p. 468.) But I know of no case which holds that an injury from an accident so occurring is one "arising out of" the employment. It could be said to do so only upon the theory that the employment created the necessity of going to the place of employment and that this necessity was the cause or occasion of his being in the place of danger. But exactly the same thing could be said if he had been injured anywhere in the street along his usual and proper route from his home to the factory. And so it might be said that almost anything that occurs to the employee while absent from the place of work arises directly or in natural sequence out of his having been, or being required to be, at the place of employment. But the authorities are unanimous that the phrase does not have this comprehensive meaning. I can see no substantial distinction between this case and our decision in Ocean Accident etc. Co. v. Industrial Acc.Com., 173 Cal. 313, [L. R. A. 1917B, 336, 159; Pac. 1041], and the many similar cases cited therein, and in Bradbury's Workmen's Compensation Law, above cited, to the effect that the employer is not liable for an injury to the employee during his journey to or from his place of work.
Melvin, J., concurred.
Rehearing denied.
Lawlor, J., Wilbur, J., Lennon, J., and Olney, J., concurred.
Shaw, J., Melvin, J., and Angellotti, C. J., dissented. *Page 306