Foster v. Massey

407 F.2d 343, 132 U.S. App. D.C. 213
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 29, 1968
DocketNo. 21480
StatusPublished
Cited by13 cases

This text of 407 F.2d 343 (Foster v. Massey) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Massey, 407 F.2d 343, 132 U.S. App. D.C. 213 (D.C. Cir. 1968).

Opinions

ORDER

Appellants’ petition for rehearing is treated as a motion for clarification and, as so treated, is granted. The opinion previously issued is withdrawn, and the following clarified opinion is herewith filed.

PRETTYMAN, Senior Circuit Judge:

This is a workmen’s compensation case. It arises out of an accident in which appellant Foster’s husband, on his way to work in his automobile, was injured and died. The Deputy Commissioner denied the widow’s claim, on the ground “That the injury, and consequent death of the employer [sic], did not arise out of and in the course of the employment.” She appeals from that determination.

The evidence was uncontradicted. We have examined it and find that it supports the findings.

Decedent was an “extra board” bus driver for Safeway Trails, Inc. The term means that as a bus driver he did not have a regularly assigned run but was listed on a bulletin board and subject to call to duty by the employer. An extra board operator was required to provide himself with telephone facilities in order that he might be called to service. The union agreement contemplated that he might be called six days a week. He had to be able to report to work in an hour and a half from the time he was called. At the time of a call the dispatcher informed the driver of the time to report and the place, which latter was either the bus terminal or a certain garage. If the driver did not respond or was not available to receive a call, he was subject to a disciplinary measure called a “miss out”. These restrictions made it necessary that an extra board operator either be at home at all times, or leave a phone number where he could be [345]*345reached, or continually call in to the dispatcher. A driver could call the dispatcher at any time and secure information as to the probability of a call that day.

The driver's pay began at the time named by the dispatcher as the time to report for work. As long as a driver was off duty and away from company property, the company had no jurisdiction over him whatever. An extra board operator, like other drivers, was paid on the basis of the number of miles he drove during the week. However, unlike regular drivers, the extra board operator received a guarantee of payment for 800 miles run a week, whether or not he drove that much, provided he was available to report six days a week. This was a guaranteed wage.

Decedent lived in a community in Maryland called Glen Burnie, near Baltimore. The terminal and the garage to which he reported were in the District of Columbia, over thirty miles away, a drive of about 45 minutes to an hour, depending on traffic. He had been with the company three and a half to four years.

On the morning of the accident (November 24, 1965) Foster called the dispatcher to inquire as to the possibility of a call and was told he would probably be used that afternoon. He was called at approximately 2:15 p. m. to report at four o’clock at the Washington Garage at 1905 Brentwood Road, N.E. Between two-thirty and three o’clock he called his wife to say he was on his way to work. The accident occurred in the 2800 block of New York Avenue, N.E., about a mile from the garage. Foster was in his own car and was driving a route selected by him. . He was not on any special errand for the company.

It is well settled that, generally speaking, injuries sustained by employees going to or from work are not compensable under the workmen’s compensation statute.1

Appellants argue that this case falls within any one of three exceptions to the general rule. The first exception is where the employee is paid for making the trip from home to work. Appellants say that the obligation of extra board operators to be available to call, to equip themselves with telephones, and to respond to calls are parts of the obligation for which the wage is paid. They say: “The actual act of response was a prerequisite to his earning that wage, and consequently Jack Neil Foster was earning it at the time that he met his death. This [the guaranteed wage] is payment for the act of responding.” The argument is specious. Reporting for work is normally prerequisite to earning a wage. The coming-and-going doctrine would be stripped of all meaning by this view of appellants. We must note that the necessity for being available to call is not novel in the world of labor. To get a day’s wage many workmen, both common workmen and expert tradesmen, such as carpenters, bricklayers, roofers, et al., must respond to a call. Weather and the amount of work available on a given day are fluctuating factors in many fields. And to receive a call by phone is not different in principle from receiving it at a designated place, a hiring hall or a street comer.

To establish this trip-payment exception, pay must be specifically identified as related to the trip or to the time spent going to the job site. The prescription for compensability under this statute is “arising out of and in the course of employment”. While the statute is broad and liberal in its application, its benefits are definitely derived from employment. Usually the trip between home and work lacks all the ehar[346]*346acteristics of employment (time, place, pay, and employer control), but if there is pay for the trip this thin link is deemed sufficient to bring the trip within the boundary of employment and thus of accident compensability. But obviously, in order to constitute such a link, the identification of pay with trip must be specific and certain. It is not enough that before the trip begins workers are on call rather than on fixed schedules, or to argue in the abstract that overall compensation takes account, as a background fact, of the inconvenience of being on call rather than being on a fixed schedule. Fixed schedules are frequently quite inconvenient. The necessity to report for work at a designated place at a fixed hour five days a week is definitely restrictive in many ways, such as place of residence, hour of rising, hour of evening meal, out-of-town trips, time, place, nature and amount of amusements, etc. But restrictions do not transmute into employment the activity or time thus restricted, or make injuries arising therefrom or in the course thereof compensable under this statute.

Whenever an employer’s location is such that going to work is time-consuming for a significant portion of the available labor force, this is a place dis-utility, in economic terms, that doubtless shows up, one way or another, in higher wages or offsetting benefits. But such background considerations do not provide the specific identification of pay to the trip which is necessary to establish compensability for injuries suffered en route to work.

A wage such as this guarantee could be paid for some purpose other than its ostensible one of making the basic job more attractive, but certainly in the present case that purpose was not to pay the employee for the trip to and from his home. In the first place, neither the contract of employment nor the union contract contains provision for pay for that purpose. In the second place, no reason appears why extra board operators should be paid for the trip to and from home while regular operators were not. The argument presumes such a discrimination; the argument assumes that the guarantee, which regular drivers did not receive, was pay for the trip. Foster’s circumstances by no means required the Commissioner to find that he, unlike other employees who are generally on call, had a special schedule of compensation for on-call service.

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Foster v. Massey
407 F.2d 343 (D.C. Circuit, 1968)

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Bluebook (online)
407 F.2d 343, 132 U.S. App. D.C. 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-massey-cadc-1968.