Langendorf United Bakeries, Inc. v. Industrial Accident Commission

NOURSE, P. J. Certiorari to review an award of compensation to one Kemper, an employee of the petitioner. The petitioner founds its ease on the ground that the injury did not arise “out of and in the course of the employment” within the meaning of section 6 of the Compensation Act. (Deering’s Gen. Laws, Act No. 4749.) This contention must be sustained.

The only dispute as to the terms of the employment arises from the failure to distinguish between the original employment and the terms under which Kemper was employed [47]at the time of his injury. The petitioner operated a number of trucks used in the delivery of bakery supplies and, for some time prior to the injury, had employed Kemper, who was an auto mechanic, to keep these trucks in repair. All these trucks were garaged in Santa Rosa where the repair work was done, and, at the time of the original employment, Kemper was told that he could charge the petitioner for the cost of gas and oil used by him in going in his own car from his home in Petaluma to Santa Rosa, and also when called out on the road when any of the trucks was in need of repair. Before the injury this contract was changed in particulars important to this inquiry. The petitioner leased a garage in Petaluma and garaged some of its trucks in that city and some in Santa Rosa. Kemper was then employed at a new wage to work three days a week in Santa Rosa and three in Petaluma and was relieved of all repairs to trucks on the road. These trucks did not begin to enter either garage until about 3:30 or 4:00 P. M. of each day and Kemper’s employment began at that time. He was free to do as he pleased during the forepart of each day. He was not restricted in his means of transportation, but was free to go from one city to the other by train, bus, or in any other manner he chose. However, he was definitely told that no allowance would be made for gas or oil in the use of his own car. As a matter of convenience to him alone he was permitted to keep his ear in petitioner’s garage in Petaluma. On a day when he was employed to work in Santa Rosa alone he was working on his own car in Petaluma and was injured at about 12:30 P. M. His employment did not begin in Santa Rosa until about 3:30 of that day. The distance between the two cities is about twenty miles.

Upon these facts the case is controlled by the recent decision in Postal Tel. Cable Co. v. Industrial Acc. Com., 1 Cal. (2d) 730 [37 Pac. (2d) 441], It can be said here as was said in that case that, at the time of the injury, the employee “was on no special errand for petitioner and he had not yet reached his place of employment where his duties were to begin”. The following language of that opinion is also applicable here: “The contract here did not require of (the employee) any particular means of travel to and from his place of service. Whether he used the motorcycle to transport himself from his home to his place