California Casualty Indemnity Exchange v. Industrial Accident Commission

TRAYNOR, J. — Jane Duffus was employed as a stenographer in Fullerton by the Val Vita Food Products, Inc. She and several other employees of the company lived in Los Angeles thirty-three miles away, and for their convenience the company purchased an automobile to transport them to and from work. There was a bus line between Los Angeles and Fullerton, and the employees were not required to use the automobile, but those who did were charged $4.00 a month, representing a pro rata share of the running expenses, which was deducted from their wages. The employees would decide among themselves who was to drive, and there was no regular driver. The employee who lived the farthest away would drive the ear home, keep it over night and in the morning pick up the other employees on the way to work.

On April 18, 1941, three employees of the Val Vita company, including Mrs. Duffus, were driving home in the automobile. One of them left the car, and shortly thereafter it collided with another automobile, injuring Mrs. Duffus. The employees had punched the time clock before leaving the plant, but, as was their custom, had taken with them office mail, which they deposited in a mail box on the road. The driver of the automobile had also taken samples to be delivered to a salesman of the company in Los Angeles. Mrs. Duffus was not driving the car at the time of the collision. She applied for compensation under the California Workmen’s Compensation Act, and the Industrial Accident Commission made an award in her favor. The insurer of the [463]Val Vita company now petitions for a writ to review this award, contending that the evidence does not support the finding of the commission that the accident arose out of and occurred in the course of the applicant’s employment.

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 transportation 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. (Dominguez v. Pendola, 46 Cal.App. 220 [188 P. 1025]; Trussless Roof Co. v. Industrial Acc. Com., 119 Cal.App. 91 [6 P.2d 254]; Rader v. Keeler, 129 Cal.App. 114 [18 P.2d 360] ; see Dellepiani v. Industrial Acc. Com., 211 Cal. 430 [295 P. 826]; Smith v. Industrial Acc. Com., 18 Cal.2d 843, 846-847 [118 P.2d 6] ; 10 A.L.R. 169; 21 A.L.R. 1223; 24 A.L.R. 1233; 62 A.L.R. 1438; 87 A.L.R. 250; 9 So.Cal.L.Rev. 63; cf. California Highway Com. v. Industrial Acc. Com., 61 Cal.App. 284 [214 P. 658].) The case of St. Helens Colliery Co., Ltd. v. Hewitson, (1924) Appeal Cases 59, upon which petitioner relies, represents the English rule but not the law in the United States. (American Coal Mining Co. v. Crenshaw, 77 Ind.App. 644 [133 N.E. 394]; Phifer’s Dependents v. Foremost Dairy, 200 N.C. 65 [156 S.E. 147, 62 A.L.R. 1438].) There is no question that the automobile in the instant case was furnished by the employer to the employees for the purpose of transporting them to and from work. It is also clear that the ear was under the employer’s control. (Trussless Roof Co. v. Industrial Acc. Com., supra; Konopka v. Jackson County Road Com., 270 Mich. 174 [258 N.W. 429, 97 A.L.R. 552]; Phifer’s Dependents v. Foremost Dairy, supra; McClain v. Kingsport Improvement Corp., 147 Tenn. 130 [245 S.W. 837] ; Swanson v. Latham & Crane, 92 Conn. 87 [101 A. 492]; Osterhout v. Latham & Crane, 92 Conn. 91 [101 A. 494].)