By this proceeding in certiorari
petitioner seeks to annul an award of the Industrial Accident Commission in favor of respondent Tompkins. Tompkins is employed by the city and county of San Francisco as a streetcar conductor on its Municipal Railway. At 12:41 a. m. on February 8, 1943, he finished his “run” for the night at the carbarn of the Municipal Railway at Mariposa and Hampshire Streets in San Francisco. He was allowed ten minutes thereafter to turn in the cash collected by him as conductor, and at 12:51 his wages for the night terminated. Shortly thereafter Tompkins boarded another streetcar operated by the Municipal Railway in order to go to his home. He was traveling on a pass entitling him to ride free at any time on all Municipal Railway cars and busses. While riding on this latter ear, the car collided with a truck and Tompkins received the injuries for which the award under attack was made.
The questions presented herein may be brought into focus by the following quotation from the recent opinion of our Supreme Court in California Cas. Indent. Exch. v. Industrial Acc. Com., 21 Cal.2d 461, 463 [132 P.2d 815]:
“Petitioner contends that the case falls within the general rule that injuries sustained by an employee while going to or coming from his place of employment are not compensable under the Workmen’s Compensation Act. (See 27 Cal.Jur. 380.) It is well recognized, however, that if an employer, as an incident of the employment, furnishes his employee with *250transportation to and from the place of employment and the means of transportation are under the control of the employer, an injury sustained by the employee during such transportation arises out of and is in the course of the employment and is compensable. ’ ’
It is petitioner’s claim that this case falls within the general “going and coming” rule above stated and the injury is therefore not compensable. Respondents rely on the exception to the “going and coming” rule stated in the second sentence of the above quotation, their position being that since Tompkins was being transported from his place of work to his home by means of a vehicle under the control of the employer and as an incident of his employment his injury is compensable.
The pass that was furnished the injured employee contained a printed recital on its back reading in part: “This pass for free transportation on cars or buses of the Municipal Railway is issued as a courtesy and not as part of consideration for employment. . . . Pass must be surrendered upon its expiration date, upon termination of employment, or when its surrender is requested by proper authority.”
Petitioner argues that this language compels a finding that the pass was a mere gratuity revocable at will and not a part of the contract, nor an incident of the employment.
The witness Hauser, called by petitioner herein, testified that he was an inspector employed on the Municipal Railway and had been with the Municipal Railway for over thirty years; that each employee of the Municipal Railway is given a pass of the kind issued to Tompkins; that such passes have been issued since 1942; that prior to that time badges were issued to all Municipal Railway employees giving them the same privileges, and that the use of badges and passes for free transportation on the Municipal Railway has been an accepted condition of employment for the entire period of his connection with the Municipal Railway.
The Industrial Accident Commission was not bound to accept the printed statement on the pass, but was entitled to consider evidence showing “the inception of the agreement, the situation of the parties at the time of the execution of the contract, and the practical construction of the contract by the parties.” (Pacific Lbr. Co. v. Industrial Acc. Com., 22 Cal.2d 410, 416, 431 [139 P.2d 892].) Herein the established and unvarying custom of at least thirty years duration as
*251“an accepted condition of employment” to furnish such transportation was entitled to be considered in determining whether it was furnished as a part of the contract of employment and incidental thereto. “Whatever has been uniformly done in the execution of such a contract by both of the parties to it well may be regarded as having been adopted by them as one of its terms.” (In re Donovan, 217 Mass. 76 [104 N.E. 431, 432, Ann.Cas. 1915C 778]; Phifer’s Dependents v. Foremost Dairy, 200 N.C. 65 [156 S.E. 147, 148].)
The language of Mr. Justice Traynor in California Cas. Indem. Exch. v. Industrial Aec. Com., supra, at pp. 464-465, is particularly apposite:
“The employer, however, supplied transportation to and from its office as a regular practice, and the employee regularly used that transportation. An agreement by an employer to furnish transportation need not be express; it may be implied from the circumstances of the case and the uniform course of conduct of the parties. . . .
“. . . The employer’s right to withdraw the privilege of using the car was merely a right to terminate the contract at will, and was not inconsistent with the existence of the agreement. A contract at will remains a contract until it is terminated. . . .
“Petitioner contends that even if the evidence shows an agreement to furnish transportation it was not part of the contract of hire and therefore not an incident of the employment. Transportation may be incidental to the employment, however, even though it is only a collateral or subsidiary part of the contract of employment, or ‘something added to the principal part of that contract as a minor, but none the less a real, feature or detail of the contract.’ [Citing in re Donovan, 217 Mass. 76 (104 N.E. 431, Ann.Cas. 1915C 778).] Since the transportation was regularly furnished to the employee solely because of her status as an employee, the inference is reasonable that the transportation depended upon the fact of the employment and was incidental to it. ’ ’
Petitioner cites and relies upon certain New York cases of which Tallon v. Interborough Rapid Transit Co., 232 N.Y. 410 [134 N.E. 327, 21 A.L.R. 1218], is the leading authority in that jurisdiction. In that case one Tallon, an employee of the Interborough Rapid Transit Company, was killed *252while riding to work on one of its trains using a pass given to him for that purpose by his employer. The New York Court of Appeals held by a divided court, three justices dissenting, that his death was not compensable. The reasoning of the majority opinion is found in the following quotation (pp. 327 and 328 [134 N.E.]);
“The passenger trains of the defendant were public conveyances. Anybody and everybody had a right to ride in them upon paying the fare. Tallón was not obliged to use these trains in going to his work under any agreement with the defendant. He could have traveled by any other convey-anee or could have walked. . . .
“Now this case differs materially from those cases where the employer, in order to get his employees to and from their work, provides conveyances exclusively for their use which in no sense are public conveyances and in which the employees undertake to ride as part of their contract of employment in going to and from their work.”
The holding is thus put on two grounds: (1) That the employee was free to use other means of going to and from his place of employment; and (2) that the conveyance, although operated by the employer, was a public carrier and not provided exclusively for the purpose of transporting the employees. Neither of these bases of decision has found acceptance in the other jurisdictions of this country.
The first ground was the basis of the decision of the House of Lords in St. Helens Colliery Co., Ltd. v. Hewitson (1924), App.Cas. 59. In that case an employee was injured on a train furnished by his employer to transport its employees to and from their place of employment. The House of Lords held that the injury was not covered by the British Workmen’s Compensation Act because the employee was not obligated to use the train in going to and coming from his work. This decision overruled a long line of earlier British cases. (See note in 62 A.L.R. pp. 1445-6.) In California Cas. Indent. Exch. v. Industrial Acc. Com., supra, at page 463, our Supreme Court said of the St. Helens Colliery Co. case that it “represents the English rule but not the law in the United States”; and, at page 464, expressly rejected its holding in the following language:
“Likewise, the employee’s freedom to use other transportation no more precludes the existence of an agreement than *253the freedom of the purchaser of a railroad ticket to use other transportation than that for which he paid.” (Citing American Coal Mining Co. v. Crenshaw, 77 Ind.App. 644 [133 N.E. 394], and Konopka v. Jackson County Road Com., 270 Mich. 174 [258 N.W. 429].)
The second ground of decision in the Tallón case is opposed to the great weight of American authority. The courts of this country, outside of New York, have refused to make a distinction between transportation by private and public conveyance operated by the employer and have accepted the view expressed in the dissenting opinion of McLaughlin, J., in the Tallón case that (p. 329 [134 N.E.]): “The transportation is the same whether it be in a private or public conveyance.” (Radermacher v. St. Paul City Ry. Co., Minn. [8 N.W.2d 466, 469]; De Camp v. Youngstown Municipal Ry. Co., 110 Ohio St. 376 [144 N.E. 128]; Micieli v. Erie R. Co., 18 N.J.Misc. 466 [14 A.2d 56]; Manchester St. Ry. v. Barrett, 265 F. 557; Knorr v. Central Railroad of New Jersey, 268 Pa. 172 [110 A. 797]; Central Const. Corporation v. Harrison, 137 Md. 256 [112 A. 627]; Western Indemnity Co. v. Leonard, (Tex.Com.App.) 248 S.W. 655; of. Dellepiani v. Industrial Acc. Com., 211 Cal. 430 [295 P. 826].)
The provisions of the Workmen’s Compensation Act are to be liberally construed to extend its benefits for the protection of employees injured in the course of their employment. (Pacific Lbr. Co. v. Industrial Acc. Com., supra, p. 433, and cases there cited) and we believe that the majority rule is more in keeping with the spirit of the Workmen’s Compensation Act and better founded in reason than the peculiar refinement of the rule developed in England and New York.
Finally petitioner argues that, since the employee could use the pass at any time and was not limited in its use to going to and coming from his work, that fact must distinguish this case from those relied upon by respondents. It is said that to affirm this award will create a condition in which a distinction must be made in future cases between those occasions when a pass is used in going to or coming from work and other times when it is being used by an employee on errands of his own in no way connected with his employ*254ment. The distinction is no more difficult than many others which courts and administrative bodies are daily called upon to make. It would be unrealistic to hold that an employee traveling to and from work on a pass limited to use for that purpose would be covered by the Workmen’s Compensation Act, and that one traveling to and from work on a pass giving him the greater privilege of also traveling for other purposes of his own would not be covered. The legal consequences of the employer furnishing transportation to and from work as an incident of the employment in a conveyance under its control are not changed by the fact that the employer also furnishes transportation for other purposes in such conveyances. The Supreme Court of Minnesota found no difficulty in disposing of the identical question in Radermacher v. St. Paul City Ry. Co., supra, a case remarkably like the present one on its facts.
The award is affirmed.
Peters, P. J., concurred.