Hinson v. Workmen's Compensation Appeals Board

Opinion

FRANSON, J. Billy Gene Hinson seeks review of a' decision of the Workmen’s Compensation Appeals Board denying his petition for reconsideration of the referee’s finding that by reason of the “going and coming rule” his injury did not arise out of and occur in the course of his employment. Hinson was injured on January 5, 1973, when his pickup collided with another vehicle on Highway 33 as he was driving to work. For the reasons hereafter expressed, we hold there is substantial evidence to support the board’s decision.

The facts pertaining to Hinson’s employment as gleaned from a sparse record are as follows: Hinson drove a tractor and did maintenance work on tomato pickers on a large ranch operated by Giffen, Inc. He reported for work at 6 a.m. at a headquarters shop on the ranch which was located approximately two miles from his home and was paid on an hourly basis from the time he reported to work. The employer had a pickup available which the foreman would use to take the tractor drivers to the fields and to return them to the shop at the end of the day’s work. However, at times, Hinson and the other drivers would use their own cars to get to the fields if they had driven them to work. Hinson testified that the foreman would “rather” that the employees take their own cars to the tractors, thus avoiding the necessity of his having to take them to and from the fields. Hinson also testified that the use of his own car saved him a trip back to the shop after he finished work in the fields; if he had his own car he could go directly home from where his tractor was located. He said, however, that he did not take his own car to the fields if the foreman didn’t ask him to.1 Hinson’s employer did not pay him for any of the mileage he drove in his own car nor did he pay him for gas or oil he used.

[249]Hinson kept six to ten wrenches of different sizes in his pickup which he used on the job. The wrenches were carried by hand with a chain through them and kept on the tractor during his working hours. Hinson took the tools home each night in his car to keep them from being stolen.

Our Supreme Court has observed that the tension underlying the so-called “going and coming rule” is generated by the legitimate interests of the employer to be immune from liability for the employee’s injury or death that occurs in the everyday transit from home to work, and the valid competing interests of the employee for protection where the accident occurs in nonroutine transit, or where the employee uses a means of transportation undertaken for his employer’s benefit. (Hinojosa v. Workmen’s Comp. Appeals Bd., 8 Cal.3d 150, 156-157 [104 Cal.Rptr. 456, 501 P.2d 1176].) The court said: “We think a careful analysis of the decisions will develop the formula that reconciles the divergent positions. . . . The decisions [exclude] the ordinary, local commute that marks the daily transit of the mass of workers to and from their jobs; the employment, there, plays no special role in the requisites of portage except the normal need of the presence of the person for the performance of the work. . . . On the other hand, many situations do not involve local commutes en-route to fixed places of business at fixed hours. These are the extraordinary transits that vary from the norm because the employer requires a special, different transit, means of transit, or use of a car, for some particular reason of his own. When the employer gains that kind of a particular advantage, the job does more than call for routine transport to it; it plays a different role, bestowing a special benefit upon the employer by reason of the extraordinary circumstances. The employer’s special request, his imposition of an unusual condition, removes the transit from the employee’s choice or convenience and places it within the ambit of the employer’s choice or convenience, restoring the employer-employee relationship.”