Opinion
Rehearing Denied Nov. 30, 1966.
For Opinion on Hearing, see 59 Cal.Rptr. 622, 428 P.2d 606.
Irmas & Rutter, Beverly Hills, for petitioners.
Everett A. Corten, San Francisco, Edward A. Sarkisian and Romaine E. Harper, Los Angeles, for respondents.
McCOY, Justice pro tem.
This is a proceeding to review an award of workmen's compensation benefits to an employee for injuries sustained in an automobile accident as he was returning to a remote jobsite after a weekend at his home. The question is whether his injuries arose out of and occurred in the course of his employment.
The applicant, Lawrence Alvin De Carmo, was employed as a bricktender by the Smiley Steel Construction Company of Canoga Park on a construction project in Yucca Valley. He lived in Inglewood, about 130 miles from the jobsite. The regular workweek was from Monday through Friday. The employees working at the jobsite stayed in the Yucca Valley area during the week and customarily returned to their homes in the Los Angeles area on weekends. The accident in which applicant sustained injuries occurred on a Monday morning, June 21, 1965 on the highway between Sun Valley and Yucca Valley as he and two fellow employees, Gregory Dunn and Steven Bothwell, were returning by automobile to the jobsite after spending the weekend at their homes. The automobile was operated by Dunn and owned by a member of Dunn's family.
Transportation to and from the jobsite was not customarily furnished by the employer and it exercised no control over the means of transportation or the routes chosen by the employees. They drove their own cars or arranged rides among themselves. The job foreman occasionally gave an employee a ride in the employer's truck to or from the Los Angeles area on weekends, and supervisory personnel occasionally helped them arrange rides. Applicant ordinarily drove his own car to the Yucca Valley area. The Friday before the accident his car broke down at the jobsite and he borrowed the employer's truck to tow it back to Los Angeles. On Saturday he returned the truck to the general superintendent's home in Sun Valley. On Sunday he called the general superintendent seeking a ride back to the jobsite. The general superintendent told him he would take him, and on Monday morning applicant reported to the superintendent's home. The latter testified that, having forgotten that he had to run an errand, he "arranged" for applicant to ride with Dunn. Asked how he did that, his only testimony was: "I had him go up with Greg Dunn." No other details of what the "arrangement" was are shown in the record although it appears that Dunn and Bothwell had made prior plans to return to the jobsite in Dunn's car and that Bothwell was the 17-year old son of the general superintendent. The employer did not pay or agree to pay Dunn for his time or expense or for the use of his automobile.
The employees involved in the accident were paid at hourly rates and their time began at the jobsite. Dunn and Bothwell, students working for the summer as laborers, were paid only hourly rates. Applicant, as well as certain other employees, was paid a "subsistence" allowance of $10 There was in effect at the time of the accident a union agreement applicable to bricktenders on the project. It contained a provision that the employer would pay workmen who were required to travel excessive distances common carrier fare and travel time to a job and return "upon completion of employment." It contained a further provision that "in all other areas covered" by it the employer would pay a "subsistence" allowance. It called for a subsistence allowance of $6 per workday in an area within 50 miles of the boundaries of a described "free" area and $10 per workday in an area beyond 50 miles of the boundaries of the described "free" area. Yucca Valley was within the latter area. The union agreement contained no provision for payment of either subsistence or travel costs to and from the jobsite on weekends. It appeared that the employer was unfamiliar with its provisions until after the accident, they were not discussed with applicant, and applicant was not a member of the Bricktenders Union.
The employer and its insurance carrier, petitioners herein, contend that the award must be annulled because the circumstances shown by the evidence call for the application of the general rule that injuries sustained by an employee while going or returning from a fixed place of employment are not compensable under the Workmen's Compensation Act. The Workmen's Compensation Appeals Board contends that the case does not fall within the "going and coming" rule. It asserts that at the time of the accident the applicant was riding in a vehicle furnished by the employer and was paid for his travel expense, either of which fact takes the case out of the rule. There is no dispute in the evidence. The question for the court is whether the evidence is susceptible to the inference that the employer had agreed that the employment relationship commenced at the time the applicant left for the job in Dunn's automobile. We have concluded that this question must be answered in the negative.
The basic question of whether an injury arises out of and in the course of employment in any given case presents questions of both fact and law. Insofar as the issues relate to the credibility of the witnesses, the persuasiveness of the evidence, and the resolving of conflicting inferences, the questions are of fact. But as to what minimum factual elements must be proven and the sufficiency of the evidence to that end, the questions are of law. (Reinert v. Industrial Acc.Com., 46 Cal.2d 349, 358, 294 P.2d 713; Westinghouse Elec. Corp., etc. v. Ind.Acc.Com., 239 A.C.A. 588, 592, 48 Cal.Rptr. 758.)
Under the so-called "going and coming" rule injuries sustained by an employee while going to or returning from a fixed place of employment are not compensable under the Workmen's Compensation Act because, in the absence of any agreement to the contrary, it is assumed that the employment relationship is suspended from the time the employee leaves the premises until he returns to resume work. (Cal. Cas. Indem. Exch. v. Ind. Acc. Com., 21 Cal.2d 751, 754, 135 P.2d 158.) An exception to the rule may be established by evidence that the employer has agreed, either expressly or impliedly, that the relationship shall continue during the period of "going and coming." (Kobe v. Industrial Lane v. Industrial Acc. Com.,
Such an agreement may be inferred from the fact that the employer furnishes transportation to and from the place of employment in a conveyance under his control and in discharge of an obligation on his part to furnish transportation. (Cal. Cas. Indem. Exch. v. Ind. Acc. Com., supra, 21 Cal.2d 461, 132 P.2d 815; Trussless Roof Co. v. Indus. Acc. Com., 119 Cal.App. 91, 6 P.2d 254; Dominguez v. Pendola, 46 Cal.App. 220, 188 P. 1025.) It may not be inferred from the fact that an employer on occasion conveys an employee to the place of employment solely as a courtesy. (Boggess v. Industrial Acc. Com., 176 Cal. 534, 536, 169 P. 75, L.R.A.1918F, 883; see Trussless Roof Co. v. Indus. Acc.Com., supra, 119 Cal.App. 91, 94, 6 P.2d 254.) However, an obligation on the part of an employer to furnish transportation need not be established by express promise; it may be implied from a custom and regular practice of the employer to furnish transportation. (Cal. Cas. Indem. Exch. v. Ind. Acc. Com., supra, 21 Cal.2d 461, 464, 132 P.2d 815; City, etc. of S.F. v. Ind. Acc. Com., 61 Cal.App.2d 248, 250-252, 142 P.2d 760.)
Evidence that the driver of the vehicle was acting as the agent of an employer is all that is required to establish that transportation was furnished in a conveyance under the control of the employer. (Trussless Roof Co. v. Indus. Acc. Com., supra, 119 Cal.App. 91, 94-95, 6 P.2d 254.) Actual ownership of the vehicle is material only on the question of agency. While proof that the vehicle belonged to the operator's employer raises an inference that the operator was acting in the service of the employer (Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 487, 116 P.2d 121; Halbert v. Berlinger, 127 Cal.App.2d 6, 17, 273 P.2d 274), the mere fact that upon request one person gives another a ride in his own vehicle is not sufficient to support a finding of agency. There must be evidence that at the time the operator was subject to a legal duty to serve, or assented to the right to control in another. (Edwards v. Freeman, 34 Cal.2d 589, 591, 212 P.2d 883.) The fact that a superior officer "arranges" for an employee to ride to work with another employee is not, without more, sufficient to show that the driver was acting under the control of the employer. (See Kadow v. City of Los Angeles, 31 Cal.App.2d 324, 328, 87 P.2d 906.)
An agreement that the employment relationship shall continue during the period of travel to and from a fixed place of employment cannot be inferred from the mere fact that the employer pays the cost of public transportation (Smith v. Industrial Acc. Com., 18 Cal.2d 843, 847, 118 P.2d 6) or an amount for travel expense which is not paid in lieu of or as a means of discharging a contractual obligation to furnish transportation (Westinghouse Elec. Corp., etc. v. Ind. Acc. Com., 239 A.C.A. 588, 590, 480 Cal.Rptr. 758; Cf. Trussless Roof Co. v. Indus. Acc. Com., supra, 119 Cal.App. 91, 6 P.2d 254). The mere fact that because of the location of the work an employer pays a sum measured by the cost of transportation is no more significant than if he pays a sum to cover the additional cost of food or other expenses at that place. (Westinghouse Elec. Corp. v. Ind. Acc. Com., supra, 239 A.C.A. 588, 591, 48 Cal.Rptr. 758.) The payment of a sum identifiable as wages for the time consumed in traveling to and from the place of employment, on the other hand, is highly significant and raises a fair inference that the employer agreed that the employee's service continue during the period of travel. (Kobe v. Industrial Acc. Com., supra, 35 Cal.2d 33, 36, 215 P.2d 736.)
The contention that the payment of any sums as subsistence in addition to actual wages for work at remote jobsites compels an inference that the employer Brumbaugh v. Industrial Accident Commission,
Wiseman v. Ind. Acc. Com., Aubin v. Kaiser Steel Corp.,In the present case the ultimate finding that the applicant sustained injuries arising out of an d in the course of his employment gives no clue as to the theory on which the referee and the Workmen's Compensation Appeals Board proceeded to make the award. We are mindful of the liberal rule of construction (Labor Code, § 3202) and of the limited scope of our review. The evidence, however, compels a finding that the employer was not obligated to furnish transportation on weekends to the applicant as an incident of the employment. The board in its answer does not contend otherwise. The dealings between the employer and the applicant, the union contract, and the custom and practice of the parties show no such obligation. As we have pointed out, to invoke an exception to the general rule on the ground that the employer furnished the transportation or on the ground that it paid travel costs, there must be an underlying obligation to furnish transportation.
There is no evidence that the sums paid to applicant for each workday had any relation to or were compensation for time spent in traveling. There is not even any evidence that these sums had any relation to the distance traveled or his actual travel costs. Furthermore, we think the evidence presented falls short of supporting any inference that the employer had the right to control the vehicle in which applicant was riding. It shows only that the trip was made in the Dunn automobile; no one was paid for its use; Dunn was not paid for his time or expenses; the general superintendent "arranged" for applicant's transportation; he "had him go up with Greg Dunn"; he "told" him to go with Dunn; he "knew they [his son and Dunn] had planned to ride up together"; Dunn and applicant had in the past shared the cost of gasoline on weekend trips.
The principal cases on which the board relies to sustain the award are distinguishable on the facts. We find no cases upon which the award can be sustained on the facts of this case.
The award is annulled.
FOURT, Acting P.J., and LILLIE J., concur.