Fidelity & Casualty Co. of New York v. Industrial Accident Commission

CONREY, P. J.

Writ of review to determine the validity of an award made by the Industrial Accident Commission in favor of one Arthur H. Johnson and against the Pure Milk Dairy Company, a corporation, and its-insurance carrier.

The Dairy Company, as a distributor of milk in the city of San Diego, operated five automobile delivery wagons and maintained a garage for their care and repair. Johnson was employed as foreman of the garage and was furnished with a Ford automobile to be used in connection with his employment. He was permitted to use the automobile incidentally for his personal convenience and kept the automobile at his home during the time when he was at home. Johnson’s regular hours of .-employment were from 7 A. M. until 6 P. M. He was also expected to respond to emergency calls at any time, and the company maintained a telephone at Johnson’s home in order that he might be called at any time when required out of the regular hours by the emergencies of the business.

On the nineteenth day of April, 1919, having in view some affairs relating solely to ’his personal convenience and pleasure, Johnson left the garage at about 5 o’clock in the evening and drove the Ford car to his home and to several other places in the performance of his personal errands. After attending to these matters he went to his home, took off his working clothes, and dressed for the purpose of keeping a social engagement of the evening. He then started from his home to the garage for the purpose of attending to some unfinished duties there prior to keeping said social engagement. On his way to the garage, in suddenly turning

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his car to avoid collision with a motorcycle, the car was overturned and Johnson received the injuries for which he sought to obtain compensation and on account of which an award was made by the Industrial Accident Commission.

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The question for decision is tersely stated by counsel for petitioners as follows: “Should compensation be awarded to an employee who, purely for his own purposes, leaves his place of employment before his day’s work is finished and, several hours later, is injured upon the public streets when returning to Ms place of work?” This question (except only that the applicant had not left Ms employer’s place of business at an unusual time) was presented to this court in