Opinion
Decided January 7, 1935.
Workmen's compensation — Employee subject to call — Injured while responding to call from employer — Injuries sustained in course of employment.
Where an undertaker's employee who has no regular hours of employment but is subject to call at all hours, is struck by an automobile while responding to a call from his employer to hurry to the funeral home, the injuries thus received are sustained during and by reason of his employment.
ERROR: Court of Appeals for Hamilton county.
Mr. John W. Bricker, attorney general, Mr. R.R. Zurmehly and Mr. Raymond J. Kunkel, for plaintiff in error.
Mr. D.T. Hackett and Mr. Jacob Ziegler, for defendant in error.
This case is presented on error from the Court of Common Pleas of Hamilton county, wherein judgment was rendered providing for participation by the plaintiff, Timothy Murphy, in the State Insurance Fund. The commission now claims that such judgment is erroneous for the reason that the injuries suffered by the defendant in error were not the result of his employment.
The defendant in error was an employee of an undertaking establishment. His duties required him to do certain work in and about the funeral home, such as acting as a houseman, and trimming caskets. There is also evidence that occasionally he was required to go to hospitals or homes to assist in the conduct of appropriate incidents to the business.
The defendant in error lived some considerable distance from his place of employment, and was, by the terms of his employment, required at all times to hold himself in readiness for a call for immediate service. It was necessary that he should at every moment of the day and night keep his employer aware of where he might be reached by telephone, and it was a part of his contract of employment that immediately upon receiving a call he should repair at once to the funeral parlors or such other place as might be designated by his employer. It is obvious that defendant in error had no regular hours of employment.
On the day defendant in error was injured he received a call from his employer at approximately 6:00 a.m. He testified:
"15. Where did you spend the night and the morning of the next day, January 19th?
"A. Well, that night of course I came home to my own rooms you know, and the next morning is when I got that telephone call when I went to get my breakfast.
"16. What time?
"A. Well, I judge it was around six o'clock or quarter after six in the morning when I got the telephone call.
"17. From whom?
"A. Mr. Gilligan, at Gilligan's office.
"18. What order, if any, did you get?
"A. Be over in a hurry because I was needed, the house had been empty, they had to go on a call.
"19. Be where?
"A. At the funeral home, 22 W. Ninth.
"20. What did you do after receiving that call?
"A. I immediately drank my coffee and went over to get the street car, when I was struck by an automobile.
"21. After that, you know nothing?
"A. Not then, because I was unconscious from that time on for eight weeks. Yes sir, eight weeks I was unconscious."
It is the contention of the commission that the actual employment of the defendant in error did not commence until he arrived at the funeral home. We cannot so hold. It seems clear to us that there are many differences between the case under consideration and what is commonly styled a "coming and going case," where the employee has a fixed time to appear at his employer's place of business. Up to the time the employee reaches such place he is his own master, can choose his route, engage in such private enterprises as he sees fit, take as much time as is consistent with his reaching his place of employment at the stipulated time, start when and from where he chooses, and, after he leaves his place of employment, go where he pleases, with no responsibility to advise his employer of his movements.
In the instant case it is perfectly apparent that immediately upon receiving the telephone call it became the duty of the employee to go directly to his place of employment as rapidly and directly as he could. His private affairs from the moment that he was advised that he was wanted must be put aside. Any action upon his part inconsistent with such direct and immediate response to his employer's call would have been proper occasion for his discharge.
We conclude therefore that the defendant in error was injured during and by reason of his employment.
This case has had an interesting history. It was first tried by Hon. Stanley Matthews of the Court of Common Pleas, and a verdict was instructed by the Judge for the commission. A motion for a new trial was filed, and the court granted the motion. An opinion was written by Judge Matthews upon the granting of the motion, in which the pertinent authorities were reviewed at length. Murphy v. Industrial Commission, 32 N.P. (N.S.), 89. We agree with the reasoning and conclusion of the court.
For a full review of the authorities upon which we predicate our conclusion we refer to the opinion of Judge Matthews.
This case was then retried by the Late Hon. Thomas H. Darby. This Judge overruled a motion for a new trial, evidently also agreeing with the conclusion of the opinion mentioned.
For the reasons stated, the judgment is affirmed.
Judgment affirmed.
HAMILTON, P.J., concurs.