LANGTBY, J.
This is a workmen’s compensation appeal. The question is whether claimant was within the course and scope of his employment at the time he was injured in a motorcycle-automobile collision during Ms noon hour from work on May 14, 1971. The hearing officer, Workmen’s Compensation Board and circuit court successively resolved tMs question against the claimant.
Claimant was a regular farm employe of Mr. WalcMi who was engaged in intensive diversified cropping of 450 to 500 acres of land in several fields spread over approximately a 25-mile area around the towns of Hermiston and Stanfield in Umatilla County. Claimant owned a motorcycle which was kept continuously for about 10 days preceding the injury, and frequently on other occasions, at the headquarters shed where employes usually gathered before dispersing to work on Mr. WalcMi’s various properties. Claimant usually rode back and forth to work from Ms home which was in Hermiston with another employe, Keith, in Keith’s personally owned vehicle. Keith and claimant often used their own respective vehicles in traveling from workplace to workplace
after they reported for work, and some of the time Walchli supplied them with fuel therefor from his pump at the shed. There was also evidence that he disapproved of this supplying of fuel to them, and had “bawled” them out for taking his fuel. In any event, the evidence is clear that he knew about and acquiesced in, at the least, their use of their personal vehicles in this manner.
On the morning of May 14 claimant and Keith came to work several minutes late in Keith’s vehicle. They parked at the shed and then went with Walchli and Walchli’s brother-in-law Jerry in employer-owned vehicles to another field several miles away near Stan-field where they all worked during the morning. Noon hour normally was from 12 to 1 and it was unpaid time. At noon claimant and Keith returned to the shed in one of Walehli’s vehicles and Walchli and Jerry returned in another. At approximately 12:20 p.m. claimant and Keith were in Keith’s vehicle leaving to go to Hermiston for lunch when Walchli drove his vehicle up to Keith’s. Walchli suggested or told claimant to ride his motorcycle home for lunch and afterward to go on it back to the field near Stanfield, where they had been, to do rotovating, inasmuch as the other work which the four together had been doing was completed and the others would not return to that place. There is confusion and contradiction in the record about what, exactly, Walchli told claimant with reference to the taking of the motorcycle and the time he could take for the noon hour. We detail the highlights of the testimony about the conversation in the footnote.
The record is clear that, as a consequence
of this conversation with Mr. Walchli, claimant got ont of Keith’s vehicle and started to ride lióme on his motorcycle. The accident occurred while claimant was on his way home.
Mr. Walchli kept no time records for Ms employes but depended npon them to keep tbeir time and be paid according to what they told Mm abont hours of labor.
He said he did not pay for less than “half hour.” His testimony was ambiguous.
Although each of the three preceding tribunals which have considered the facts on the basis of the testimony before the hearing officer have concluded that claimant was not in the course and scope of his employment, we think a preponderance of the evidence indicates that Mr. Walchli had cut claimant’s noon hour short and that it was for the benefit of the employer that the claimant went home for lunch on his motorcycle. If claimant had not taken his motorcycle he would have had to return to the shed after lunch
and then travel on his employer’s time to the field where he was to work. Likewise, he wonld have to stop work in the field prior to the normal quitting time in order to be at the shed at quitting time to ride home with Keith. If he had gone in Keith’s vehicle, as he otherwise would, in all probability claimant would not have been in an accident or injured.
We now proceed to consider whether our de novo review of the facts dictates a different conclusion than that of the circuit court.
Generally an accidental injury to an employe is not covered by workmen’s compensation as being one “* * * arising out of and in the course of employment # * *” (ORS 656.002 (6)) if it occurs off the employer’s premises while the employe is going to or coming from lunch on unpaid time. 1 Larson, Workmen’s Compensation Law 4-62, § 15.51 (1972). However, there are the usual exceptions, and claimant contends his injury falls therein.
The quotation from Corpus Juris in
Munson v. State Ind. Acc. Comm.,
142 Or 252, 256, 20 P2d 229 (1933), is still apropos of cases such as this:
“4 “In determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant circumstances, and it has indeed been stated rather broadly, but by eminent authority that argument by analogy is valueless.” Corpus Juris, (W. C.) p. 73’. 1 Schneider, Workmen’s Compensation Law (2d Ed.), p. 741, § 262.”
In
Mims on
it is made clear that the fact the employe is injured during unpaid time does not, in itself, defeat coverage. Important to the decision was that “[a]t the time of the injury, he was engaged in forwarding
and facilitating Ms master’s business, and * * * ‘Any other ruling would discourage helpful loyalty’.” (142 Or at 260.)
In
Jordan v. Western Electric,
1 Or App 441, 443-44, 463 P2d 598 (1970), we set out factors to be considered in deciding such questions as follows:
“ ‘a) Whether the activity was for the benefit of the employer * * *;
“ ‘b) Whether the activity was contemplated by the employer and employee either at the time of hiring or later * * *;
“ ‘c) Whether the activity was an ordinary risk of, and incidental to, the employment * * *;
“ ‘d) Whether the employee was paid for the activity * * *;
“ ‘e) Whether the activity was on the employer’s premises * * *;
“ ‘f) Whether the activity was directed by or acquiesced in by the employer * * *;
“ ‘g) Whether the employee was on a personal mission of his own * * *.’ ”
We think in the case at bar the evidence clearly favors claimant under a), b), f) and g). Because the employe’s noon hour was shortened, and the employer’s interests were furthered, we tMnk the injury occurred while claimant was on a personal mission also advantageous to his employer.
See
1 Larson, supra, 4-149, § 18.00.
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LANGTBY, J.
This is a workmen’s compensation appeal. The question is whether claimant was within the course and scope of his employment at the time he was injured in a motorcycle-automobile collision during Ms noon hour from work on May 14, 1971. The hearing officer, Workmen’s Compensation Board and circuit court successively resolved tMs question against the claimant.
Claimant was a regular farm employe of Mr. WalcMi who was engaged in intensive diversified cropping of 450 to 500 acres of land in several fields spread over approximately a 25-mile area around the towns of Hermiston and Stanfield in Umatilla County. Claimant owned a motorcycle which was kept continuously for about 10 days preceding the injury, and frequently on other occasions, at the headquarters shed where employes usually gathered before dispersing to work on Mr. WalcMi’s various properties. Claimant usually rode back and forth to work from Ms home which was in Hermiston with another employe, Keith, in Keith’s personally owned vehicle. Keith and claimant often used their own respective vehicles in traveling from workplace to workplace
after they reported for work, and some of the time Walchli supplied them with fuel therefor from his pump at the shed. There was also evidence that he disapproved of this supplying of fuel to them, and had “bawled” them out for taking his fuel. In any event, the evidence is clear that he knew about and acquiesced in, at the least, their use of their personal vehicles in this manner.
On the morning of May 14 claimant and Keith came to work several minutes late in Keith’s vehicle. They parked at the shed and then went with Walchli and Walchli’s brother-in-law Jerry in employer-owned vehicles to another field several miles away near Stan-field where they all worked during the morning. Noon hour normally was from 12 to 1 and it was unpaid time. At noon claimant and Keith returned to the shed in one of Walehli’s vehicles and Walchli and Jerry returned in another. At approximately 12:20 p.m. claimant and Keith were in Keith’s vehicle leaving to go to Hermiston for lunch when Walchli drove his vehicle up to Keith’s. Walchli suggested or told claimant to ride his motorcycle home for lunch and afterward to go on it back to the field near Stanfield, where they had been, to do rotovating, inasmuch as the other work which the four together had been doing was completed and the others would not return to that place. There is confusion and contradiction in the record about what, exactly, Walchli told claimant with reference to the taking of the motorcycle and the time he could take for the noon hour. We detail the highlights of the testimony about the conversation in the footnote.
The record is clear that, as a consequence
of this conversation with Mr. Walchli, claimant got ont of Keith’s vehicle and started to ride lióme on his motorcycle. The accident occurred while claimant was on his way home.
Mr. Walchli kept no time records for Ms employes but depended npon them to keep tbeir time and be paid according to what they told Mm abont hours of labor.
He said he did not pay for less than “half hour.” His testimony was ambiguous.
Although each of the three preceding tribunals which have considered the facts on the basis of the testimony before the hearing officer have concluded that claimant was not in the course and scope of his employment, we think a preponderance of the evidence indicates that Mr. Walchli had cut claimant’s noon hour short and that it was for the benefit of the employer that the claimant went home for lunch on his motorcycle. If claimant had not taken his motorcycle he would have had to return to the shed after lunch
and then travel on his employer’s time to the field where he was to work. Likewise, he wonld have to stop work in the field prior to the normal quitting time in order to be at the shed at quitting time to ride home with Keith. If he had gone in Keith’s vehicle, as he otherwise would, in all probability claimant would not have been in an accident or injured.
We now proceed to consider whether our de novo review of the facts dictates a different conclusion than that of the circuit court.
Generally an accidental injury to an employe is not covered by workmen’s compensation as being one “* * * arising out of and in the course of employment # * *” (ORS 656.002 (6)) if it occurs off the employer’s premises while the employe is going to or coming from lunch on unpaid time. 1 Larson, Workmen’s Compensation Law 4-62, § 15.51 (1972). However, there are the usual exceptions, and claimant contends his injury falls therein.
The quotation from Corpus Juris in
Munson v. State Ind. Acc. Comm.,
142 Or 252, 256, 20 P2d 229 (1933), is still apropos of cases such as this:
“4 “In determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant circumstances, and it has indeed been stated rather broadly, but by eminent authority that argument by analogy is valueless.” Corpus Juris, (W. C.) p. 73’. 1 Schneider, Workmen’s Compensation Law (2d Ed.), p. 741, § 262.”
In
Mims on
it is made clear that the fact the employe is injured during unpaid time does not, in itself, defeat coverage. Important to the decision was that “[a]t the time of the injury, he was engaged in forwarding
and facilitating Ms master’s business, and * * * ‘Any other ruling would discourage helpful loyalty’.” (142 Or at 260.)
In
Jordan v. Western Electric,
1 Or App 441, 443-44, 463 P2d 598 (1970), we set out factors to be considered in deciding such questions as follows:
“ ‘a) Whether the activity was for the benefit of the employer * * *;
“ ‘b) Whether the activity was contemplated by the employer and employee either at the time of hiring or later * * *;
“ ‘c) Whether the activity was an ordinary risk of, and incidental to, the employment * * *;
“ ‘d) Whether the employee was paid for the activity * * *;
“ ‘e) Whether the activity was on the employer’s premises * * *;
“ ‘f) Whether the activity was directed by or acquiesced in by the employer * * *;
“ ‘g) Whether the employee was on a personal mission of his own * * *.’ ”
We think in the case at bar the evidence clearly favors claimant under a), b), f) and g). Because the employe’s noon hour was shortened, and the employer’s interests were furthered, we tMnk the injury occurred while claimant was on a personal mission also advantageous to his employer.
See
1 Larson, supra, 4-149, § 18.00.
Another major consideration wMch inclines us to decide in favor of coverage is the rule broadly stated in 1 Larson, supra, 4-144, § 17.50:
“If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during Ms working day, the trip to and from
work is
by that fact alone
embraced within the course of employment * * (Footnote omitted.) (Emphasis supplied.)
We recognize that it is arguable from the evidence whether claimant was generally “required” to bring his own vehicle by his employer. Certainly, at the least, he received strong encouragement from the employer to bring it, and its presence was acquiesced in and definitely a benefit to the employer. We believe that, more importantly, its use was required by the employer on the occasion of the injury. The employe could hardly be expected to refuse to use his motorcycle under the circumstances of the request or direction, as the fact may be, which was disclosed by the evidence.
A principal case relied upon by Larson in support of the broad rule quoted is
Smith v. Workmen’s Comp. App. Bd.,
69 Cal 2d 814, 73 Cal Rptr 253, 447 P2d 365 (1968). In that ease the California Supreme Court categorically overruled a long-standing California decision to the contrary, and held that an employe, a social worker, whose vehicle was brought to his work and often used in furtherance of the work, even though there was evidence that employer-owned vehicles were available, was covered when injured in an accident on the way to work. The evidence reported in that case, in our opinion, was as confusing, and perhaps not as strong, as the evidence favoring claimant in the case at bar. On the basis of such evidence the California Supreme Court in what we think is a well-reasoned opinion upset the appeal board’s and referee’s rejections of coverage. The compelling reason for the ruling was that rejection of the claim
“* * * does not recognize an important limita
tion upon the going and coming rule. That limitation arises from the principle that an employee ‘is performing service growing out of and incidental to his employment’ (Lab. Code, § 3600) when he engages in conduct reasonably directed toward the fulfillment of his employer’s requirements, performed for the benefit and advantage of the employer ® * *.
U* # # * *
“* * * 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.’ ” 69 Cal 2d at 819-20.
We do not consider the statutory language defining a covered injury in Oregon to be, in any material sense involved here, different from that of California. In
Jordan v. Western
Electric, supra, which involved a coverage question, we placed similar reliance upon a recent California Supreme Court opinion.
Considering the factors and opinions we have discussed, we conclude the claimant suffered his injury “* * * arising out of and in the course of employment * *
Reversed.