Richtarik v. Bors

5 N.W.2d 199, 142 Neb. 226, 142 A.L.R. 881, 1942 Neb. LEXIS 12

• Court: Nebraska Supreme Court
• Decided: August 14, 1942
• Docket: No. 31402
• Status: Published

Opinions

Carter, J.

This is an action under the workmen’s compensation laws of Nebraska. The action is by Robert Richtarik, plaintiff and appellee, against James Bors, employer of Richtarik, and Hardware Mutual Casualty Company, insurance carrier for Bors, defendants and appellants.

The action was originally tried by a single judge of the compensation court, who held in favor of defendants. Appeal was taken to the full compensation court, which awarded benefits to the plaintiff. Appeal was taken to the district court, where the action of the compensation court was sustained. From the action of the district court the case has been appealed here.

There is no material dispute, either as to the facts or as to the controlling principles of law. The dispute hinges rather upon the application of the facts to well-settled interpretations of the workmen’s compensation act.

On Sunday, January 26, 1941, and for about four years prior thereto, plaintiff was an employee of the defendant Borb at Wilber, Nebraska, where the said defendant operated a garage and automobile sales agency. Plaintiff was a licensed automobile salesman and in his employment he did about everything connected with the business, including bookkeeping, making sales of cars and parts, and at the time of the accident he had supervision of service. During the times when Bors was out of town he had charge of the garage. Part of his duties was to demonstrate automobiles. His salary was $60 a month.

On January 26, 1941, Bors was away from Wilber, and plaintiff was in charge of the garage. In the forenoon of this day plaintiff went to the garage in the performance of service there, and drove a car to a prospective buyer’s home. He then returned to his home. Again in the afternoon he went to the garage to perform service in connection with his employment, and again returned home, where he remained until about 9:00 p. m., when a prospective purchaser returned with a car. He got into the car, drove the customer to the customer’s place of business and then drove to the garage, where he left the car, locked the door to the garage and started home on foot. He left by an alleyway, and when he had gone about 44 feet he slipped on icy pavement and fell, fracturing his right arm at the wrist. Plaintiff stated that it had been his intention to stay at his home the rest of the evening, after having returned the car to the garage.

The appellants contend that the district court was in error in holding that the injury sustained by plaintiff was compensable under the workmen’s compensation laws. They insist that the following exclusionary provisions of section 48-152, Comp. St. Supp. 1941, preclude a recovery:

“(c) Without otherwise affecting either the meaning or the interpretation of the abridged clause, ‘Personal injuries arising out of and in the course of employment,’ it is hereby declared: Not to cover workmen except while engaged in, on or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen, and not to cover workmen who on their own initiative leave their line of duty or hours of employment for purposes of their own.”

This court has held, and it is the general rule, that if an employee is injured while going to or from his work and' his home, the injury does not arise out of nor in the course of the employment. Siedlik v. Swift & Co., 122 Neb. 99, 239 N. W. 466; McDonald v. Richardson County, 135 Neb. 150, 280 N. W. 456; Wilbur v. Adams Lumber Co., 140 Neb. 48, 299 N. W. 268. Appellee contends, however, that as he had no regular hours and was subject to call at any time, he is brought within a recognized exception to the general rule. With this we cannot agree.

■ It appears to us that appellee’s trip from the garage to his home was no more incidental to the employment than if it had been made at the close of regular hours of work. The injury was not received while appellee was engaged in, on, or about the premises where his duties were to be performed, or where his services required his presence as a part of such service at the time of the injury. The injury was entirely independent of the relation of master and servant. He was upon no mission of the employer. No act of the employer, imputed or otherwise, contributed to the injury. He was no longer performing any service for the employer. The power of direction and control had ceased to exist; the appellee was on his own. It is clear that under the statute, section 48-152, Comp.' St. Supp. 1941, the injury is not compensable.

When an employee has finished his work and is on his way home, a mission of his own, and is injured at a place where he is not required to be by his employment, he is not within the provisions of the compensation law. And in this respect it makes no difference whether he works regular hours or is subject to call by the employer.

While the facts in this case vary to some extent from those in cases heretofore decided by this court, we think it is controlled by the principles announced in De Porte v. State Furniture Co., 129 Neb. 282, 261 N. W. 419; Siedlik v. Swift & Co., supra; Pappas v. Yant Construction Co., 121 Neb. 766, 238 N. W. 531; McDonald v. Richardson County, supra; Wilbur v. Adams Lumber Co., supra.

The accident did not arise out of or in the course of the employment and, consequently, appellee has no cause of action.

Reversed and dismissed.