Claim of Scanlon v. Herald Co.

Hinman, J. (concurring):

In my judgment there should be a reversal. The accident did not arise out of claimant’s employment. The claimant admits that the primary reason for going home was to get his lunch. He *175says, “ I can get a street car at five o’clock easier than at six o’clock.” When asked, “ There is nothing compulsory about your taking this work home? ” he says, “Yes, or I would lose my lunch.” When asked, “You could do it at the office? ” he says, “ But I would lose my lunch.” In answer to the question, “ If you went back to the office and did the work you did home, how long would it take you? ” his answer was, “ The same length of time.”

The employer’s general manager says: “ He might have taken it back to the office,— in that case he would have missed a meal and be forced to eat it down town instead of going home.” His employer knew that he took work home and that there were other employees who did the same thing. The general manager testified “ there are a number of employees who do work at home — all that we require is that the men do their work — if a man doesn’t do it we fire him.” Claimant says he was told he could use his own judgment and get the work done. There were times when claimant would collect advertising copy from the patrons of his newspaper on his way home to lunch but on the night in question he says: “ I collected it [the copy] at the office and took it home and prepared it.”

The question before us cannot be decided upon the basis of what he might have done on other occasions in the way of collecting copy from advertisers while out for lunch. The question is, what was he doing that night? Of course he had to get the work out for the night crew, but the accident did not arise out of his having to do that work. It arose out of his doing it that way and the method was adopted by himself to give him a more satisfactory meal at home. The method served him. His employment did not require it. He had no set hours. He simply had to get the work ready in time to get the edition out. The employer was satisfied with the method but did not dictate it expressly or impliedly. It was not a condition, or an obligation, or an incident of the employment in any direct or proximate way. It flowed directly from an act of his own, prompted by a desire to serve his own personal comfort or his own physical well-being. He preferred to lunch at home. If he had gone to lunch without the work in his possession there would be no question but that he was not covered. When he put the work in his pocket and went home for lunch to get a good meal, doing part of his work at home instead of getting a quick lunch nearer the plant and then returning to the office to complete his work, I fail to see how any different principle can be applied. His method of getting lunch simply extended his journey on the street and prolonged his absence from the office. He had to come back to the office in either event. It was not any more an *176errand of the master. His exposure to the perils of the street was no different in kind and was prompted by the same motive. In either event the purpose of his going home was to get his lunch. If he took the work home it was an incident of his own convenience and not an incident of his employment. Therefore, his injury did not arise out of his employment and the award should be reversed.