My disagreement with the majority opinion is that the result is reached by the application of a rule or formula rather than a liberal application of the law to the special facts of this case. It is the theme of the majority opinion that there is a general rule called the "going and coming" rule which states that a workman is not in the course of his employment until he reaches the premises where his actual work begins and he is not in the course of his employment when he leaves such premises to go home. The opinion recognizes that there are certain "well established" exceptions to this general rule and it is the majority view that the court's duty is to fit the facts to one or more of the so-called exceptions and, if the facts fit, the workman was in the course of his employment while going to or from his work. If they do not fit, then he was not in the course of his employment.
The exception discussed by the trial court and in the majority opinion is the "special errand" exception and the majority hold, since the facts do not show Otto was on a "special errand," then the general rule of nonliability applies. I do not think it is as simple as that. As Justice Sutherland said, in Cudahy Packing Co. v. Parramore, 263 U.S. 418, 424, 44 S. Ct. 153, 154,68 L. Ed. 366, 369, 30 A.L.R. 532, 536:
"No exact formula can be laid down which will automatically solve every case."
See, also, Spencer v. Chesapeake Paperboard Co., ___ Md. ___,47 A.2d 385, and cases there cited.
In Conyers v. Krey Packing Co., ___ Mo. App. ___, 194 S.W.2d 749, 752, it is stated: *Page 1001
"However, no all-embracing definition of the phrase `arising out of and in the course of employment' has yet been framed, and every case involving this phrase should be decided upon its own peculiar facts and circumstances and not by reference to some formula. Wamhoff v. Wagner Electric Corp., Mo. Sup., 190 S.W.2d 915, loc. cit. 917; Leilich v. Chevrolet Motor Co., 328 Mo. 112,40 S.W.2d 601, loc. cit. 605."
The connection between injury and employment which the statute states must be such injury as arises out of and in the course of employment must be determined upon the facts of each case.
An accident occurs in the course of an employment when it takes place during the time of such employment. We speak of an incident happening during the course of any given day when it occurs during that day. Therefore, the requirement of the statute that the injury, to be compensable, must be in the course of employment means that it must occur during the time of employment.
In the case of the day laborer whose work and pay begin when he arrives at his employer's plant or place of business in the morning and end when he quits in the afternoon, the question of whether or not an injury en route to or from his home was in the course of his employment is simple. It just did not occur during his employment. There may be other considerations in such cases that would render such injury compensable which, for the purpose of this case, we need not consider. But see Cudahy Packing Co. v. Industrial Commission, 60 Utah 161, 207 P. 148, 28 A.L.R. 1394, and same case, Cudahy Packing Co. v. Parramore, supra,263 U.S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A.L.R. 532. The rule that an injury sustained while an employee is going to or from his work will not be compensable, because not in the course of employment, is for such cases. Now suppose the employer calls such an employee at his home in the evening and tells him, "Go back to the plant and do some special work this evening." This is one of the exceptions to this so-called general rule recognized by most jurisdictions. Obviously the employer *Page 1002 is in no position to deny that the special service he requested, namely, "go back to the plant and do some special work," was not all, including the going and coming back, in the course of his, the employer's, business. The employee on his way to and from the plant in response to the special call is just as much in his master's service as if he were sent on an errand during his work day. While he travels the same route, to the same destination, and exposed to the same hazards on a special trip as he does when he goes to work in the morning at his regular time or home after the usual quitting time, the difference lies in the business he is pursuing at the time of the journey. Ordinarily an employee whose work and pay begin when he arrives in the morning is engaged in his own business when he travels to work at the regular time. He is not pursuing his master's business. But the same employee would be pursuing his employer's business if his trip to and from the employer's plant were a special trip made in response to specific instructions to go from his home to the plant to do something for the employer's benefit. Hence the entire trip would, in the second instance, be in the course of the employment. The question to ask, then, in case an employee is injured on his way to or from his place of employment is, Whose business was he pursuing at the time? The question is to be answered from all of the facts of the case. The special errand is only one instance showing the employee was on his master's business or in the course of his employment at the time he was going from his home to his employer's place of business. There are others, as Chief Justice Hughes said, in Voehl v. Indemnity Ins. Co., 288 U.S. 162, 169, 53 S. Ct. 380, 383, 77 L. Ed. 676,680, 87 A.L.R. 245, 249:
"While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere."
The nature of the employment is of vital importance. In the foregoing discussion we spoke of the ordinary employee whose work and pay started when he arrived at his employer's plant. But claimant was not such an employee. The nature *Page 1003 of his employment made it imperative that he go to the school building on the morning of his injury to perform the services of opening the school, heating the building, and sanding the walks. As was said in Kyle v. Greene High School, 208 Iowa 1037, 1042,226 N.W. 71, 73:
"His going to perform the service was not personal to himself, but was incidental to his employment, and in the interest of his employer."
He was the district's sole employee whose duty it was to go to the school and open it and do all that was necessary to make the school building a fit and proper place for school purposes. In the performance of those services he would be carrying out duties which, if not performed, would mean the school would not open. In other words, the "business" of the school district, if it can be called that, would completely stop if the duties ordinarily performed by claimant went undone. The school building in this case was something more than just the premises where claimant worked. It was property, owned by his employer, over which his employer had given him sole and complete charge. He was the trusted employee, in sole charge of the employer's instrumentality of business, or the school building. He had no regular hours of employment. As the sole custodian of his employer's building it was not contemplated that claimant should be there at all times but it was contemplated that he would go to the property whenever it was necessary that a custodian be present. He could lock the building up when, in the course of the master's business, it would be unused, but he must return and open it again and prepare it for use when, in the course of his master's business, it would be used again. The duty to return to the property and perform his custodial duties whenever they were necessary for the contemplated use of the property was always present. The call to return to the schoolhouse in the Kyle case merely notified the employee that his custodial services were necessary. Kyle's job, like claimant's here, included a duty to go to the property over which he was in complete charge whenever it was necessary. Surely the result would have been the same in the Kyle case if there had been no call, but Kyle, *Page 1004 knowing of the scheduled basketball game, was killed while on his way to open the schoolhouse for the game. There was no call for claimant in this case, but nevertheless he was in the exercise of the same duty at the time he was injured, namely, the duty to go to the employer's premises, which had been placed in his complete charge, to the end that the premises be devoted to the use contemplated by the employer. The necessity for the claimant building custodian to come to the building, fire the boilers, sand the walks, and prepare it for use by teachers and pupils on March 14, 1944, was known to claimant. The necessity for Kyle, in Kyle v. Greene High School, supra, to come to the building and fix the lights so that the building could be used for a basketball game was made known to Kyle by a telephone message to his home. In both instances the custodians were responding to an absolute necessity for their presence at the property placed in their charge. They were in pursuit of their master's business in going to the school. They were not the ordinary workmen going to work at their master's premises. They were building custodians in the performance of their duty to go to their employer's premises whenever their custodial services were necessary to the proper use of the building. The majority opinion seems to recognize that a special trip can be part of regular duties. If Kyle, knowing of the basketball game, went to the school to adjust the lights, without any telephone call from the principal, he would be making the same kind of trip the school janitor made in Kromley v. Board of Education, 13 N.J. Misc. 627, 180 A. 546, and the majority opinion states the Kromley decision "falls within the rule of our own Kyle case."
The decision of this court in Davis v. Bjorenson, supra,229 Iowa 7, 11, 293 N.W. 829, 830, is much in point. There we held an employee was injured in the course of his employment when hurt in an automobile collision while driving his car to his employer's shop where the evidence showed the car was used by the claimant and other employees in the employer's business. This court, speaking through Justice Oliver stated:
"Thus the car was an instrumentality of the business at all hours of the day and was subject to that use at night. It *Page 1005 happened that claimant received no orders to make emergency service calls during the night before he was injured. Consequently, it was his duty, and this duty was regular and definite, to take the automobile to the employer's shop for his use in the business, by others as well as claimant. In so doing he was performing for his employer a substantial service required by his employment at the place and in the manner so required. * * *
"It is our conclusion that claimant was in the course of his employment when so engaged and that his injury arose out of his employment. The trial court was correct in so holding."
The instrumentality of business which claimant here had in charge was a school building. It was not movable, but he had the key, and on principle the trips to open and close the school building and render it available for his employer's business were within the agreement of employment just as much as the trips in the Davis case that rendered the movable instrumentality of the employer's business available for such business. The case of Gelbart v. New Jersey Federated Egg Producers' Assn., 17 N.J. Misc. 185, 7 A.2d 636, is distinguished by the majority on the ground that the employee was making a special trip at the time the accident occurred. The decision does not rest on such a narrow ground. The opinion does not even discuss the "special trip" exception to the "going and coming" rule. The decision is based squarely on the employee's regular and customary duty to go to the grading station with his key and open it for business. The case is directly in point and I feel a sound application of the law.
No one can hope to reconcile all of the cases involving street accidents to employees going to and from the employer's place of business. Some courts seem to attempt to breathe liability in their decisions by narrowing the application of the "coming and going" rule as if the rule were of legislative origin. There are cases granting compensation to employees, injured on public highways, while going to work because the employee had reached the "zone of such employment." See *Page 1006 Barnett v. Britling Cafeteria Co., 225 Ala. 462, 464,143 So. 813, 814, 85 A.L.R. 85, 88, where the employee fell a few feet from the entrance of her employer's place of business. In Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 700, 187 S.W.2d 321, 325, it was stated that one of the exceptions to the "coming and going" rule was where "the employee has reached a place so close to the employer's premises as to be considered a part thereof." While such decisions indicate a commendable liberality in defining an employer's premises, they should not be regarded as extending the exceptions to the "coming and going" rule. The courts are merely holding that the rule has no application because the employee has arrived at the employer's premises as the word "premises" is liberally defined.
Then there is the class of cases where the employee does some of his work at home, such as Lang v. Board of Education, ___ S.D. ___, 17 N.W.2d 695, 697, where the school principal was injured in falling on an icy street on his way from his home to the schoolhouse. The court found he did part of his work at home, so again it was held the "going and coming" rule did not apply. Since he had been working at his home before he started for the school, the court held that:
"He was not simply getting to his work, he was actually at his work, not only as to time and place, but in an act essential to continuing the work which had been started at his home."
Other cases where it has been held the rule does not apply are the cases where the employer provides the means of transportation to and from work or the time consumed is paid for or included in wages. Generally, in the cases where the rule is stated and the exceptions to it listed, one of the exceptions is stated: "Where the employee on his way to or from work is still charged with some duty or task in connection with his employment." See Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 66, 129 S.E. 330,332; Gallman v. Spring Mills, 201 S.C. 257, 22 S.E.2d 715. We recognized this exception in the Kyle case, where we stated the rule applied *Page 1007 except where the employee was on his way from home to his employer's place of business to perform "some duty incidental to the nature of his employment, in the interest of, or under the direction of, his employer." 208 Iowa 1040, 226 N.W. 73.
The case here falls within the last exception. It is the exception recognized and applied in the case of Cymbor v. Binder Coal Co., 285 Pa. 440, 132 A. 363. It is the exception recognized and applied in Gelbart v. New Jersey Federated Egg Producers' Assn., supra. Cymbor's whole job at night consisted of a trip to the mine to throw a switch that started the pumps that pumped the water out of the mine so the workmen could go to work in the mine the next morning. Part of Gelbart's job was to go to the produce station with his key to open it for business. That, too, was part of Otto's job. It was a duty incidental to his employment. Both Gelbart and Otto had other duties to perform when they reached their master's premises but the point is, the duties incidental to their employment included a duty to go, at all hazards, to the end that the employer's place be opened and made ready for business. Such employees having a duty to "open" premises certainly have an incidental duty to go to the premises to open the doors. The going then becomes a part of the incidental duties of the employment. The duty to give the law a liberal application is a command to the courts to allow compensation if the trip was a part — any part — of the bundle of duties wrapped up in the phrase "incidental to his employment."
The compensation law is for the benefit of workers, designed to compensate them for industrial injuries. As stated in Conyers v. Krey Packing Co., supra, Mo. App., 194 S.W.2d 749, 751:
"* * * the employee is entitled to have compensation for any injury by accident arising out of and in the course of his employment, and the law should be liberally construed in furtherance of that end. If on the established facts a doubt arises as to the right of the employee to have compensation, the doubt must be resolved in favor of compensation." *Page 1008
Upon the established facts of this case, I am unwilling to hold that Otto was on a mission of his own when he took the trip he dreaded to make. I feel, under the special facts of this case, he was performing one of the duties incidental to his employment. I would reverse.
GARFIELD, C.J., and BLISS and OLIVER, JJ., join in this dissent.