If it appeared from the testimony in the instant case that the employer had instructed the employee to walk when she was required to go from the restaurant to Ah Leong's store for the purpose of getting cigarettes, that instruction would have become one of the terms of the employment contract. Under these circumstances, that condition of employment having been accepted and then disregarded, it might be argued that the injury to the employee *Page 585 arose, not out of her employment but out of a violation of one of its provisions. But that is not this case. There is not a scintilla of evidence to show that the employer ever gave the employee any instructions as to how she should traverse the distance between the restaurant and Ah Leong's store. Nor is there any evidence of an expressed or implied prohibition against the use of any particular means of locomotion. The conclusion therefore is obvious that in the performance of that duty the method of accomplishing it was left to the reasonable discretion of the employee.
In Carey v. Honolulu Iron Works, 30 Haw. 457, 459, it was held that when an employee is not instructed as to what route he should take in returning an automobile truck to his employer's garage after finishing his daily work the implication is that the choice is left to the employee.
In the Kunze case (158 N.W. 851), cited by the majority, the injured employee was hired by the defendant company as a tree trimmer and planter. He was required to go from place to place in the performance of his duties. On the day of the injury he had left one job and while en route to board a car which was to take him to another job was struck by an automobile. The court held that the injury arose out of his employment. There were no prohibitions or directions as to the means of travel to be adopted by the employee while going from one job to another. In these circumstances the court concluded that the means of transportation were left to the choice of the employee, saying (p. 852): "We think it is clear from the record that the employment of the deceased was to go from place to place to trim trees, and that in the discharge of these duties it was not only necessary for him to supervise the work, but it was necessary, in the course of his employment, to proceed from one job to the other, adopting such means of locomotion as he might desire." *Page 586
On this same point it is said in State ex rel. Duluth Brewing M. Co. v. District Court, 129 Minn. 176, 179-180: "He [the employee] had never been told that the light bulbs were to be under lock as to him who was charged with the duty of seeing that the broken and defective ones were replaced. He had a variety of matters to attend to in which he, like servants generally, had to rely on the promptings of his own judgment as to details. Undesirable, indifferent, and of little value indeed are the services of an employee who must be expressly directed as to the time, manner and extent of doing each particular task." (A statement of the facts in this case appears later in the opinion.)
Likewise, in the instant case, the employee was required under her employment to get cigarettes, but no directions were given to her as to how she was to accomplish that duty nor were any prohibitions made against any particular means of travel.
The thesis of the majority is stated in the following language: "It is apparent that the accident arose from peril added to by the conduct of claimant. Courts have uniformly held that an injury sustained by a workman entering or leaving the place of employment while using a more hazardous route than ordinarily used or by subjecting himself to an unusual or unnecessary danger does not arise out of his employment."
I am of the opinion that if the employee in the instant case, in the exercise of her discretion, had chosen means that were inherently dangerous it might be argued that such means were so completely outside the contemplation of the parties that the resulting injury did not arise out of the employment. In my opinion this also is not the case now before the court. It seems to me it must be conceded that riding on a motorcycle is not in and of itself an inherently dangerous method of travel. If that were *Page 587 not so the operation of motorcycles on the public streets instead of being permitted, as it is, would be prohibited as a public nuisance.
In support of their theory the majority rely on the Moore Scott Iron Works case, the Inland Steel Company case and Lord Atkinson's illustration in the Barnes case, which is quoted in the Inland Steel Company case.
In the Iron Works case (36 Cal.App. 582) a safe means of exit was provided by the employer. The court found that the scaffolding and ladder on the outside of the ship, which were used by the injured employee, were "a means not intended for his use in leaving the ship at any time — another and perfectly safe method of exit having been provided by his employers." It is also significant that the court considered that when the employee left his work to go to lunch before the hour when he was permitted to leave it he had abandoned his employment. An injury occurring during such an abandonment, clearly, I think, does not arise out of the employment. In the instant case no means were provided the employee by which to get the cigarettes. The means of getting to the store were left to her own judgment and there was no abandonment of her employment.
In the Steel Co. case (118 N.E. 162) the employee, who was a switchman, was injured when he attempted to board a moving locomotive. The locomotive was going in the direction of the employer's plant where the employee was required to check out at the end of his day's work. The court held that the injury did not arise out of his employment, principally because the employee (p. 166) "attempted unnecessarily to do a perilous act, not reasonably incident to his employment." Such a fact is not present in the case at bar, for as I have already stated the mere riding on a motorcycle is not in and of itself a perilous act. *Page 588
In the Barnes case the very language of Lord Atkinson distinguishes that case from ours. There the servant, employed to go on foot, violated the provisions of his employment. Here the employee was not directed nor employed to walk when purchasing cigarettes and therefore there was no violation of any of the terms of her employment.
I believe the application of the principle adopted by the majority is a narrow one and I am supported in this belief byState ex rel. Duluth Brewing M. Co. v. District Court,supra, and Clem v. Chalmers Motor Co., 178 Mich. 340. These are cases in which the employees adopted unusual methods in the performance of their duties and were injured thereby. And yet both the Minnesota and Michigan courts held that the injuries arose out of the employment.
In the Minnesota case the injured servant, Charles DeCook, had worked for the brewing company as the foreman's helper for more than five years prior to the accident. One of DeCook's duties was to replace all broken or defective electric light bulbs. To protect these bulbs against breakage and from being stolen the company had them screened and locked. In making replacements DeCook was required to get the key from the foreman, unlock the screen, take the broken or defective bulb to the foreman, replace said bulb, lock the screen and return the key to the foreman. On the day of the injury another employee gave DeCook an apparently empty cartridge shell. The latter believed he could fashion a key from the shell and thus save time and energy in making bulb replacements. The shell proved to be a loaded dynamite cap which exploded under DeCook's hammering, piercing his right eye and destroying the sight. In granting compensation the court said (pp. 179, 180): "We shall not attempt to formulate a definition of the phrase, accidental *Page 589 injury arising out of the employment, except to say that the accident causing the injury must arise out of work or business being done for the master either by direct or implied authority. The trial court evidently took the view that DeCook in good faith believed he was furthering his master's business, and performing an act which he might reasonably be expected to do when he undertook to supply himself with a key. He had never been told that the light bulbs were to be under lock as to him who was charged with the duty of seeing that the broken and defective ones were replaced. He had a variety of matters to attend to in which he, like servants generally, had to rely on the promptings of his own judgment as to details. Undesirable, indifferent, and of little value indeed are the services of an employee who must be expressly directed as to the time, manner and extent of doing each particular task. Hence, when a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place to do something in furtherance of his master's business, and meets with accidental injury therein, the trial court's finding, that the accident arose out of and in the course of employment, should not be disturbed, unless it is clear to us that the ordinary servant, in the same situation, would have no reasonable justification for believing that what he undertook to do when injured was within the scope of his implied duties. If another servant duly engaged in the master's work had had his sight destroyed, instead of DeCook, in this accident the thought would have been almost irresistible that this law was meant to cover such injury. But, upon the facts in this case, we doubt whether DeCook should occupy a less favorable position. If the attempt to make a key was reasonable within the scope of his employment, the fact that, from ignorance or error of judgment, he made use of dangerous material, not provided by the master, should not *Page 590 necessarily exclude the conclusion that the injury arose out of the employment. The term cannot be restricted to injuries caused from anticipated risks of the service if the law is to be of the benefit intended."
In the Michigan case Charles Clem was employed by the defendant motor company as a carpenter. In order to add to the comfort and efficiency of the workers the company provided lunches which were served during the forenoon. On the day of the accident Clem and other employees were working on the roof of a building about twenty feet high. Between nine and ten o'clock the men were called by a subforeman to come down for lunch. A ladder attached to the side of the building was used by the employees in going to and from the roof. In going for their lunch all the workmen, except Clem and two others, descended by the ladder. Clem attempted to go down by a rope, the end of which was from about five to seven feet from the ground. He fell and was hurt, receiving injuries which resulted in his death. In allowing recovery the court said (p. 345): "If, when the call to come to lunch was made, Mr. Clem, in responding to the call, had inadvertently stepped into an opening in the uncompleted roof or in company with the others had, in the attempt to reach the ladder, got too near the edge of the roof and fallen and been hurt, would it be claimed that the injury did not arise out of and in the course of his employment? The getting his luncheon under the conditions shown was just as much a part of his duty as the laying of a board or the spreading of the roofing material."
It is clear that in the Minnesota and Michigan cases the employees had by their own conduct added to whatever perils were connected with their employment, but more important, it seems to me, is the fact that both employees, in performing their duties, employed unusual and dangerous methods. If compensation should be granted *Page 591 in those cases it certainly should not be denied in this case, where the employee merely rode on an apparently safe motorcycle, especially in view of the testimony which shows that the waitress-employee had been busy in the restaurant up to nearly eight o'clock, that it was late and that she knew Ah Leong's store closed at eight o'clock. It makes no difference in the instant case that the employee, who had gone to Ah Leong's store on several previous occasions for the purpose of obtaining cigarettes, habitually walked.
Such is the effect of Bayon v. Beckley, 89 Conn. 154. The supreme court of Connecticut had before it questions of law which are not present in the instant case and necessarily its statement of the facts is incomplete. I have therefore had recourse to Bradbury's Workmen's Compensation (3d ed.), where the facts in the Bayon case are stated as follows (p. 629): "A woman employed to clean house once a week was shaking a rug from a porch, in an unusual place, and while leaning against the porch railing she fell to the ground and was seriously injured. It was held that the accident arose out of the employment, even though this was an unusual place in which to clean the rugs and she had previously performed this work either in the yard or under a covered porch at another part of the house. Bayon v. Beckley, 1 Conn. Comp. Dec. 69; aff'd 89 Conn. 154; 8 N.C.C.A. 588." Compensation was granted by the compensation commissioner and an appeal taken to the superior court which reserved the case to the supreme court. The latter tribunal dismissed the appeal. In stating the facts the supreme court said that the injury arose out of the employment, the effect of which leads me to say that a change by an employee from the customary manner of performing his duties proves no obstacle in granting compensation.
Several cases are cited by the majority in following *Page 592 the rule that in the absence of express provisions in the employment contract as to methods of travel, courts have, in determining what means the employee was permitted, required and expected to use, looked to the character and incidents of the employment and what the contracting parties have uniformly done in the execution of the contract. In the cited cases the courts do not expressly state that that is the rule which they have adopted and upon which the decisions are based. But assuming that the principle announced by the majority was in the minds of the judges sitting in the cited cases, nevertheless the character and incidents of this employment (the purchasing of cigarettes) did not prohibit the use of a car, bicycle or motorcycle in carrying out the employee's duty. As already stated, in the absence of instructions as to the means by which the employment is to be accomplished, there is left to the employee the exercise of a reasonable discretion in her choice of travel. Nor were the parties in agreement that walking was the exclusive mode of locomotion. The majority are of the opinion that because she had gone afoot on the same errand on an average of three or four times a week during the length of her employment, which was about three months, it may be inferred that the employer knew of this method of travel. I think this inference is not fair or reasonable. It is quite possible in many instances that an employer would have no knowledge of the method adopted by his employee in accomplishing his duties even though the employee had, upon numerous occasions, and for a long period of time, used the same method. In the instant case the employer, so far as the evidence shows, had no knowledge that her employee habitually walked and therefore it cannot be assumed that by mutual assent this method of travel became a part of the contract of employment. Therefore in the absence of instructions to the employee to use this specific method and *Page 593 in the absence of a prohibition against any other method, the discretion of the employee either to continue it or to choose some other reasonably safe means remains unaffected.
The only principle of law upon which the conclusion of the court could have been reached is that any deviation by an employee from his accustomed method of performing his duties of employment, whether he was instructed as to such methods or not, and regardless of the nature of the deviation, takes him out of the protection of the Workmen's Compensation Act. This doctrine seems to me to be fraught with serious consequences and I believe it to be contrary to the rule laid down by this court and other courts requiring a liberal construction of the Act in order to accomplish its beneficent purposes.
As was said in Industrial Commission v. Aetna Life InsuranceCo., 174 P. 589, 591 (cited by the majority): "Our courts are in agreement that these acts should be broadly and liberally construed, to the end that their beneficent intent and purpose may be reasonably accomplished. Upon this point it was said inZappala v. Industrial Ins. Comn., 82 Wn. 314, 144 P. 54, L.R.A. 1916A, 295: `In construing the language of the act, we must have in mind the evident purpose and intent of the act to provide compensation for workmen injured in hazardous undertakings reaching "every injury sustained by a workman engaged in any such industry; and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received."State ex rel. Davis-Smith Co. v. Clausen, 65 Wn. 156,117 P. 1101, 37 L.R.A. (N.S.) 466, and that the act should be liberally interpreted, to the end that the purpose of the legislature in suppressing the mischief and advancing the remedy be promoted even to the inclusion of cases within the reasonalthough outside the letter *Page 594 of the statute, and that every hazardous industry within the purview of the act should bear the burden arising out of injuries to its employees regardless of the cause of the injury. Peet v.Mills, 76 Wn. 437, 136 P. 685 [L.R.A. 1916A, 358, Ann. Cas. 1915D, 154].'"
For the foregoing reasons I respectfully dissent from the opinion of the court.