POSTAL TELEGRAPH CABLE COMPANY (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and CHAS RUDY MAHRET, Respondents, 1 Cal. 2d 730

PRESTON, J. This application for certiorari must be sustained, as will appear from a consideration of the fundamental limits set by the law establishing the workmen’s compensation system (Act 4749, Deering’s Gen. Laws, pp. 2272 et seq.). Petitioner is the Postal Telegraph Cable Company, a corporation. Respondents are the Industrial Accident Commission and Chas. Rudy Mahret, who was in the employ of petitioner as a motorcycle messenger.

Said employee was injured in a traffic collision at Geary Street and Presidio Avenue, San Francisco, on August 31, 1932, while going from his home at 1728 Anza Street, along Geary Street, to his place of employment at Van Ness Avenue and Pine Street in said city. He was traveling on his motorcycle, with side ear attachment in which was riding a friend whom he was taking to his place of employment. Petitioner employed three classes of messengers, foot, bicycle and motorcycle.

Mahret furnished, fueled, maintained and operated his own motorcycle, and was paid compensation for his services and for use of the machine in the sum of approximately $30 per week, there being no segregation of the respective amounts allowed to cover each of these items. He was furnished a uniform for which a charge of 6 cents a day was made against him. ITis hours were from 8 A. M. to 6 P. M., with an hour off for lunch. The employer furnished no place to house or garage the motorcycle.

The custom of the motorcycle messengers was to ride their machines to and' from work and garage them either at their homes or on near-by premises in whatsoever manner they desired. At the time he was injured Mahret was on no special errand for petitioner and he had not yet reached his place of employment where his duties were to begin. It may be fairly inferred that he was required to furnish and maintain the motorcycle for his use in messenger service and, as above stated, his employer maintained no facilities for storing the car when off duty.

Do these facts entitle the employee, under the act, to compensation for his said injuries?

Section 6 thereof (Deering’s Gen. Laws, supra, p. 2276) provides “Liability for the compensation provided by this act, . . . shall . . . exist against an employer for any injury sustained by his employees arising out of and in the course of the employment ... in those cases where the following conditions of compensation concur ...

(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.” Upon what basis can it be said that the injury here was one arising out of and in the course of the employment or occurring while the employee was “performing service growing out of and incidental to his employment”? These elements must all be present to authorize compensation: Enterprise Foundry Co. v. Industrial Acc. Com., 206 Cal. 562 [275 Pac. 432] ; Larson v. Industrial Acc. Com., 193 Cal. 406 [224 Pac. 744]; London G. & A. Co. v.

Industrial Acc. Com., 190 Cal. 587 [213 Pac. 977]; California C. I. Exch. v. Industrial Acc. Com., 190 Cal. 433 [213 Pac. 257]; Glass on Workmen’s Compensation, p. 232; Willis on Workmen’s Compensation, p. 9. In the case of California C. I. Exch. v. Industrial Acc. Com., supra, at page 436, it is said: “There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury.

There must be some causal connection between the employment and the injury in the sense that, by reason of the employment, there was an unusual or additional exposure of the injured party to the kind or character of hazard and danger (in this ease an ordinary street risk) which caused the injury.” When an employee is off duty the relation of employer and employee is suspended and does not reattach until the employee resumes the master’s work.

It is true that this re-entry into service may occur under special circumstances before the employee reaches the premises of the master, but this can happen only where, by contract, express or implied, the relationship attaches at such earlier time. We need not pause to give examples of this exception. The contract here did not require of Mahret any particular means of travel to and from his place of service. Whether he used the motorcycle to transport himself from his home to his place of employment and return, was of no concern to his employer under said contract.

Likewise, the question of whether he stored the machine at or near the master’s premises or stored it at home or near by is a false factor in the problem. The essence of the arrangement was that said employee report at 8 A. M. with a motorcycle ready for service; the service began at said place and at said time and not at a place and time when the employee was en route from his home and, as in this instance, many blocks away from the place of service. This employee was on no errand for his emplo3er and was traveling under no restrictions of any kind as to mode or direction of travel.

He could not only deviate for the convenience of his friend but could also perform any task for himself or for another at any time before reaching the place where his duties were to begin. This holding is in accord with the overwhelming weight of authority where the principle involved is identical with that found in -the instant case. Some of these cases are: Grathwohl v. Nassau Point, etc., 216 App. Div. 107 [214 N. Y. Supp. 496], affirmed by the Court of Appeals, 243 N. Y. 567 [154 N. E. 608] ; Thompson v. Glen Hill Gravel Co., 19 La. App. 854 [141 So. 797]; Fidelity & Cas. Co. v. Industrial Acc.

Com., 79 Utah, 189 [8 Pac. (2d) 617] ; Morey v. City of Battle Creek, 229 Mich. 650 [202 N. W. 925, 38 A. L. R. 1039] ; Johnson v. State Highway Com., 125 Me. 443 [134 Atl. 564]; Denver & R. G. W. R. Co. v. Industrial Acc. Com., 72 Utah, 199 [269 Pac. 512, 62 A. L. R. 1436]; Hartford Acc. & Ind. Co. v. Lodes, 164 Okl. 51 [22 Pac. (2d) 361]; Kneeland v. Parker, 100 Vt. 92 [135 Atl. 8, 48 A. L. R. 1396]; Inland Gas Corp. v. Frazier, 246 Ky. 432 [55 S. W. (2d) 26] ; Chernick’s Case, (Mass.) 189 N. E. 800. In fact this ease cannot be successfully distinguished from the case of Holopoff v. Industrial Acc.

Com., 131 Cal. App. 554 [21 Pac. (2d) 649]. The only case to the contrary is Maryland Casualty Co. v. Smith, (Tex. Civ. App.) 40 S. W. (2d) 913.

Counsel assert that it is distinguishable from the case at bar upon the wording of the statute of Texas, which provides: That the words “injury received in the course of employment” shall include “all other injuries of every kind and character having to do with, and originating in the work, trade, business or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere”. See American Indemnity Co. v. Dinkins, (Tex. Civ. App.) 211 S. W. 949; also, Federal Surety Co. v. Eagle, (Tex. Civ.

App.) 25 S. W. (2d) 898. But we need not consider the strength of this claim altho it seems to be recognized by the Texas courts. We prefer to rest our conclusion upon the proper construction of our own statute, steadied by the fact that statutes using the identical language of our own have been uniformly construed as not covering cases of the character of this one. Again, to sustain respondents’ claim would be to admit a liability of the employer for the torts of the employee committed while off duty. This identical question was before the Supreme Court of Washington in the ease of Carroll v. Western Union Tel.

Co., 170 Wash. 600 [17 Pac. (2d) 49], and it was there held under circumstances in all essential respects identical with those of the instant case that as a matter of law the employer was not liable. The award is annulled. Waste, 0. J., Shenk, J., and Spence, J., pro tern., concurred.