# Arboleda v. Workmen's Compensation Appeals Board > California Court of Appeal · August 11, 1967 · 253 Cal. App. 2d 481 URL: https://www.frixlaw.com/law-library/cases/9861909 ## Case - **Full name:** DOROTHY D. ARBOLEDA, Petitioner, v. WORKMEN’S COMPENSATION APPEALS BOARD, TRINIDAD HOTEL Et Al., Respondents - **Court:** California Court of Appeal - **Decided:** August 11, 1967 - **Citations:** 253 Cal. App. 2d 481; 61 Cal. Rptr. 505; 32 Cal. Comp. Cases 332; 1967 Cal. App. LEXIS 2368 - **Precedential status:** Published - **Opinion:** Dissent by Moss - **Judges:** McCoy, Moss - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9861909 ## Opinion text MOSS, J. I dissent: I believe that Mr. Arboleda’s afternoon trip to and from home to take a rest between his two daily work shifts was a "service growing out of and incidental to his employment” within the meaning of Labor Code section 3600. This provision has generally been interpreted to preclude compensation for injuries sustained while traveling to and from work—the “going and coming” rule. (Postal Tel. Cable Co. v. Industrial Acc. Com., 1 Cal.2d 730 [ 37 P.2d 441 , 96 A.L.R. 460 ].) However, since, in many cases, application of this judge-made rule would defeat the purpose of the workmen’s compensation law, numerous exceptions to the “going and coming” rule have been recognized. (See 6 Stan. L.Rev. 383, 384, (fn. 4).) One such exception has been estab *487 lished under the rubric “special errand” exception. (Schreifer v. Industrial Acc. Com., 61 Cal.2d 289, 291 [ 38 Cal.Rptr. 352 , 391 P.2d 832 ].) “Special” does not necessarily mean that the work is unusual for the particular employee involved. (Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d 289 [deputy sheriff on regular shift occasionally called to come in early] ; Robinson v. George, 16 Cal.2d 238 [ 105 P.2d 914 ] [after completion of regular delivery route, newspaper boy customarily on call for special deliveries]; Fenton v. Industrial Acc. Com, 44 Cal.App.2d 379 [ 112 P.2d 763 ] [duties of employee of California State Relief Administration included outside investigation as a “case worker”]; Dauphine v. Industrial Acc. Com., 57 Cal.App.2d 949 [ 135 P.2d 644 ] [assistant to county forester normally worked in office but also made inspections of outside facilities].) An examination of the eases which have held the “special errand” rule to apply shows that in each of them the trip of the employee had some connection with his employment other than the necessity of getting to and from work. (Several of these cases are summarized in Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d 289 at pp. 292 to 294.) Having in mind “this state’s liberal policy of construction in favor of the employee,” any doubt as to whether the “going and coming” rule prohibits compensation in this case should be resolved in favor of Mrs. Arboleda. (Leonard Van Stelle, Inc. v. Industrial Acc. Com., 59 Cal.2d 836, 841 [ 31 Cal.Rptr. 467 , 382P.2d 587].) Mr. Arboleda was killed while traveling to his place of employment to work an evening shift after having already completed an eight-hour shift earlier that day. He worked the evening shift during the hotel’s busy season for the convenience of his employer. He was called upon to report for additional hours of work as the hotel’s need demanded. His return to work that Friday was unusual in the sense that he did not work every night but only when the hotel was busy. When Mr. Arboleda returned to work for the evening shift following a three-liour afternoon respite he did not enjoy the same freedom of timing that is associated with ordinary travel to and from work. He returned home at 3:15 or 3 :20 p.m. tired from having completed an eight-hour shift. He had time only to bathe and nap before returning for the night shift. There is nothing in the record to indicate that Mr. Arboleda was provided with a place at the hotel to rest during the afternoon *488 interval. 1 We can reasonably assume that he needed a rest before working an additional four hours in the evening. It was convenient for the employer that the same waiters return for the night shift. Therefore, it is fair to say that Mr. Arboleda went home in the afternoon for the convenience of his employer and that the afternoon trip grew out of and was incidental to his employment. I believe that this case is controlled by Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d 289 . It is immaterial, in my view, that the “special errand” in that ease was rendered in response to a telephonic request on the day that the injury occurred rather than as in this case, pursuant to a work schedule posted five days before the accident which resulted in the employee’s death. It is true that Mr. Schreifer was asked to report for work “as soon as possible,” however, the opinion does not indicate that he was in an unusual hurry to get to work when the accident occurred. It cannot be said, therefore, that the shorter advance notice which he received resulted in greater additional risk to him than the five-day notice given to Mr. Arboleda. It is also true that Mr. Schreifer apparently did not report early for work with the same frequency that Mr. Arboleda worked the night shift. However, as noted earlier, the special errand exception can apply even though the errand is not unusual for the employee involved. Therefore, I do not think this point of difference between the two cases is material. I would reverse the order of the Workmen’s Compensation Appeals Board. Petitioner’s application for a hearing by the Supreme Court was denied October 5, 1967. Peters, J., was of the opinion that the petition should be granted. A good part of the hearing was taken up with testimony on the issue of whether Mr. Arboleda’s death was caused by his intoxication. Since the decision did not determine this issue we deem it to have been decided adversely to the employer and the compensation insurance carrier. (Lab. Code, % 5815.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9861909. Public record. Not legal advice.