Shell Oil Co. v. Industrial Accident Commission

BROWN, J., Dissenting.

The facts are simple and are well stated in the majority opinion. I am in accord with the conclusion that, when attending the “Spring Dealers’ Meeting” on March 16th, decedent was on a “special errand” or “special mission” and was rendering services for his employer from the time he left his home until his return thereto. Had the tragic accident occurred during that round trip, his resultant death would have been compensable. Numerous California eases are in harmony with that conclusion, and need not be cited here.

*432But that is not our ease. Mr. Byrd left his home in Merced, attended the dealers ’ meeting in Stockton, and safely returned to his home, leaving behind his disabled automobile. He then had completed his “special mission.” An important test of employer liability is whether or not the employee is acting within the course and scope of his employment at the time he sustains the injury. It seems to me that the majority opinion severs the course and scope of employment rule from the person and activities of the employee, and transfers it to his motor vehicle. It seems to hold that, until Byrd successfully and safely conveyed his disabled car to his home, the employment continued. For how long ? Suppose that, for some reason, he had been unable to obtain his car on the second trip to Stockton. Would the protective cloak of the Workmen’s Compensation Act fall about his shoulders throughout a third trip, so long as he was reasonably diligent in his efforts to get his car home ? Not so.

Courts of this state have held that, where the employee is required to travel from place to place on a “business errand” or “special mission,” an exception to the going and coming general rule exists, and the risks of such travel are directly incident to the employment itself (Sun Indem. Co. v. Industrial Acc. Com., 76 Cal.App. 165 [243 P. 892], employee injured while going home; Western Pacific R. R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754], employee injured after leaving home). (Italics added.)

The rule is well stated by Mr. Campbell, in volume 1 Workmen’s Compensation, section 184, page 173: “Where an employee is requested by his employer to return and do ‘a service outside his regular duty, ’ the sole purpose of which was to help his employer in the latter’s business, a different rule applies, and the employee is then on a special errand. The special request for unusual service is the decisive factor which brings the employee, throughout the entire trip to and from the place of business, in the course of rendering a service for the employer.” (Italics added.)

Under the principle enunciated in the cases above cited, the risks of Mr. Byrd’s travel to and from Stockton on March 16th fall fairly on his employer’s head. But that trip was safely made. He then doubled the exposure to risk by undertaking a second trip and substantially increased the peril by attempting to tow his disabled ear a distance of 70 miles, without the knowledge or consent of his employer. Neither justice nor reason require that the additional risk and the greater expos*433nre to peril should be anticipated by, and visited upon, his employer.

While cognizant of the duty imposed upon courts to construe liberally the coverage of the Workmen’s Compensation Act and the liability for injury arising out of and within the course of the employment, I must conclude, on the record before us, that the injuries which caused Mr. Byrd’s death did not arise out of or in the course of the employment and were not proximately caused by the employment.

To uphold the award granted by the commission would do violence to the purpose and the spirit of the Act and would penalize an employer by extending his liability far beyond the established bounds of the “business errand” or “special mission” exception to the going and coming rule, imposing liability until not only the employee, but all of his personal property used in connection with the special mission, is safe at home.

For the foregoing reasons the award of the respondent commission should be annulled.

Petitioner’s application for a rehearing was denied February 19, 1962. Brown, J., was of the opinion that the application should be granted. Petitioner’s application for a hearing by the Supreme Court was denied March 21, 1962.