General Insurance Co. of America v. Workers' Compensation Appeals Board

TOBRINER, J.

I dissent.

The board properly ruled that the employee was covered by compensation in this case; the employee’s trip to work prior to the time of his routine commute for the purpose of making coffee for his fellow employees falls within the “special mission” limitation of the “going and coming” rule. Adopting the findings of the referee, the board found that the special activities of the employee “were with the expressed or implied permission of the employer and for his benefit.” The performance of an added task, no matter how minor, undertaken for the benefit of the employer, entailing an early appearance of the employee on the job, carries with it the corresponding protection from loss incurred in the pursuit of that employer-ordained mission.

California’s “going and coming” rule is not legislatively mandated or enacted, but judicially conceived and created. {Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 153 [ 104 Cal.Rptr. 456 , 501 P.2d 1176 ].) The courts have recognized that the judicial rule is not ubiquitous but necessarily limited; one important limitation is the “special mission” reservation, which permits recovery if an employee is injured, whether on his own time or on that of his employer, while in the execution of a “special mission” for his employer. (2 Hanna, Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed. 1975) § 9.03, p. 9-24.)

A “special mission” may occur when an employee makes a regular trip to work at a special time. {Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289 [ 38 Cal.Rptr. 352 , 391 P.2d 832 ]; Fenton v. Industrial Acc. Com. (1941) 44 Cal.App.2d 379, 382 [ 112 P.2d 763 ]; L. A. Jewish etc. Council v. Ind. Acc. Com. (1949) 94 Cal.App.2d 65, 69 [ 209 P.2d 991 ].) To *603 constitute a “special mission,” the activity which necessitates the trip need not be “outside the scope of employment”; it is sufficient that the activity be “extraordinary in relation to routine duties.” {Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d at p. 295 .)

In the present case, decedent travelled to work at a special time to perform a service which was “extraordinary in relation to [his] routine duties.” Decedent was employed as a delivery and service man at Martin Rents. He worked six days a week, and normally left home at approximately 7:30 a.m. Preparation of coffee is not a routine duty of a delivery and service man, but on Saturdays decedent travelled to work prior to the time of his regular commute for the purpose of making coffee for fellow employees. The employer had given decedent a key to the premises, enabling him to enter upon his early arrival, and had provided a coffee pot and coffee.

The majority states that the preparation of coffee was “part of the routine duties of the first arriving employee.” Employees of Martin Rents may have customarily prepared coffee upon arrival at the normal hour, but none of the evidence received at the referee’s hearing indicates that employees other than the decedent travelled to work early to perform this service.

Decedent, however, made a trip to work at a special hour on Saturdays so that the preparation of coffee could be accomplished before the working day began. Performance at a special time of a service routinely performed by employees during the normal work day constitutes a “special mission.” In Schreifer v. Industrial Acc. Com., supra, this court upheld the award of benefits when a sheriff was injured while travelling to work before his scheduled shift at the request of his employer, although he would have performed normal duties upon arrival. In L. A. Jewish etc. Council v. Ind. Acc. Com., supra, the court sustained an award because decedent librarian was killed while driving to work early in order to inspect and discuss the purchase of some books, an activity which the court noted was within the normal duties of the employee. Likewise in the present case, decedent’s trip to work before the time of his normal commute to perform a service for the benefit of his employer constitutes a “special mission” and mandates the award of benefits.

In holding the “special mission” limitation inapplicable in the present case, the majority also relies upon the absence of a direct request by the employer that the deceased arrive early to prepare coffee. This reliance is *604 misplaced, for “the cases which have considered the scope of the special mission doctrine have not held it essential that the special activity involved be required by the employer as a condition to employment.” {Dimmig v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 867 [ 101 Cal.Rptr. 105 , 495 P.2d 433 ].) Indeed, the courts have specifically observed that the “going and coming” rule is inapplicable when an employee “engage[s] upon a mission which incidentally or indirectly contribute^] to the service and benefit of the employer.” {Shell Oil Co. v. Industrial Acc. Com. (1962) 199 Cal.App.2d 426, 428 [ 18 Cal.Rptr. 540 ]; italics added.) As we stated in Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814, 820 [ 73 Cal.Rptr. 253 , 447 P.2d 365 ], “An employer cannot request or accept the benefit of an employee’s services and concomitantly contend that he is not ‘performing service growing out of and incidental to his employment.’ ”

In the present case, decedent’s employer expressly sanctioned the making of coffee by providing the coffee and the urn, and by giving decedent a key to the premises so that he could enter upon his early arrival to perform, this service. The employer thus knew of and sanctioned the early arrival; the employer knew of, and expected the special. and early mission, distinct from the normal routine commute. The employer sanctioned and expected this special, if minor, service probably because the availability of coffee contributed to the contentment and productivity of his employees, thus benefiting the business as a whole. The referee specifically found that the activities of the deceased “were with the expressed or implied permission of the employer and for his benefit.” Under these circumstances a direct request by the employer that the employee perform this service was not necessary to bring the trip within the “special mission” limitation.

The majority’s rigid and static concept of the “going and coming” rule constitutes a retreat from our previous position that “the so-called going and coming rule composes no formula of automatic application.” {Hinojosa v. Workmen’s Comp. Appeals Bd., supra, 8 Cal.3d at p. 156 .) The fact that decedent travelled to work prior to the time of his routine commute for the purpose of performing an activity sanctioned by, and beneficial to, his employer is sufficient to bring the. trip under the “special mission” exception to the “going and coming” rule. Moreover, we have held in the past that “ ‘[a]ny reasonable doubt as to whether the act is contemplated by the employment, in view of this state’s policy of liberal construction in favor of the employee, should be resolved in favor of the employee.’ ” {Pacific Indem. Co. v. Ind. Acc. Com. (1945) 26 *605 Cal.2d 509, 514 [ 159 P.2d 625 ]; Dimmig v. Workmen’s Comp. Appeals Bd., supra, 6 Cal.3d at p. 865 .)

Thus, the majority overturns the award granting recovery in this case; it distends the going and coming rule; it converts a special mission into a routine commute.

I would affirm the award.

Mosk, J., concurred.