Moritz, Richard B.

English

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 13 | Issue 41962Workmen's Compensation--Going and ComingRule as Applied to PolicemenRichard B. MoritzFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationRichard B. Moritz, Workmen's Compensation--Going and Coming Rule as Applied to Policemen, 13 W. Res. L. Rev. 791 (1962)Available at: https://scholarlycommons.law.case.edu/caselrev/vol13/iss4/14Workmen's Compensation - Going and Comng Ruleis generally prohibited from representing clients with conflicting inter-ests ,7 Moreover, the court considered the matter of advertising.The defendant title companies often advertised, holding out to the publicthat there were lawyers on their staff, which, as to the lawyer-employee,exceeded the limitaton of the Canons.! Thus, the employment of law-yers did not afford the title compames a means by which to circumventthe prohibition against the corporate practice of law.The second argument, though not original,9 involved the full disclo-sure theory which the court accepted. This theory postulates that whena client deals with one neither a lawyer nor one governed by the code ofethics to which the lawyer is subject, the client is not assured the full dis-dosure of the effects of legal transactions to which he is a party and towhich he is entitled. To the same effect, in dealing with the lawyer-em-ployee a client deals with one whose principal motivation is the interest ofhis corporate employer. Thus, the art of conveyancing when practicedby the lawyer-employee or by the non-lawyer businessman is deleteriousto the public interest and should be proscribed.Clearly law must not be practiced by those who would profit byits administration. The present decision is motivated by this high ideal.There is, however, a dispute as to whether conveyancing is a matter whichought to be reserved to the legal profession."0 Nonetheless, the presentholding is a step forward in the direction of what Dean Pound refers to asa "resurgence of professionalism."11 The prospect of more cases reachingthe same conclusion as the present case may be limited by the practicalconsiderations of expense and of the availability of attorneys."JOHN R. FERGUSONWORKMEN'S COMPENSATION - GOING AND COMING RULE ASAPPLIED TO POLICEMENSimerlink v. Young, 172 Ohto St. 427, 178 N.E.2d 168 (1961)Plaintiff, a police officer, while in uniform and carrying his servicerevolver, billy dub, flashlight, keys, whistle, and other incidents of hisemployment, was injured in an automobile accident while driving to7. 90 Ariz. 76, 90, 366 P.2d 1, 11 (1961).8. Canons 27, 35, 47, CANONS OF PROFESSIONAL ETICS.9. This argument was advanced in Beach Abstract & Guaranty Company v. Bar Associationof Arkansas, 203 Ark. 494, 501, 326 S.W.2d 900, 903 (1959).10. See Buchignan, The Practice of Law - Why It Is a Profession, 41 J. AM. JUD. Soc'Y179 (1958).11. POUND, THE LAWYER FROM ANTIQUITY To MODERN TIMES 362 (1953).12. Cf. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998(1957). The Colorado court in sustaining conveyancing by non-lawyer realtors predicatedits holding on the practical considerations of expense and of the lack of attorneys in a numberof counties of that state.1962]WESTERN RESERVE LAW REVIEWwork. The Supreme Court of Ohio,' disregarding the fact that a policeofficer is at all tunes charged with the duty to preserve and maintain lawand order, denied compensation on the ground that the injury did not ariseout of or in the course of employment.Ordinarily, injuries sustained while going to or coming from workare not compensable.2 Workmen's compensation statutes are not in-tended to protect the worker against all perils of the journey. However,"in course of employment" is not confined to the actual manipulationof the tools of work.8In 1923 the United States Supreme Court in Cudahy Packing Com-pany v Parramore4 announced that an injury arising out of the employ-ment could be shown by proving that there was a "causal connectionbetween the injury and the business a connection substantially con-tributory though it need not be the sole proximate cause" and that "noexact formula can be laid down which will automatically solve everycase."5  The Cudahy Packing Company decision gave rise to many excep-tions that have been engrafted onto the "going and coming" rule. Ex-ceptions applicable to the Simerlink case which permit recovery for in-juries sustained are: (1) when traveling is part of the job,6 (2) when theemployee is subject to call,7 (3) when the undertaking is consistent withthe employer's contract for hire' and which in some logical manner per-1. Simerlink v. Young, 172 Ohio St. 427, 178 N.E.2d 168 (1961).2. 42 OHIO JUR. Workmen's Compensation § 53 (1936)3. 1 LARsoN, WORKMEN'S COMPENSATION § 15.11 (1952)4. 263 U.S. 418 (1923)5. Id. at 423-24.6. When traveling is part of the employment, the employee will be considered in the courseof employment from the time he leaves home until he returns. 8 ScHNEEDER, WORKMEN'SCOMPWNSATION § 1737 (3d ed. 1951). See also Healey v. Hudson Coal Company, 130Pa. Super. 462, 198 At. 684 (1938), where a police lieutenant was injured while returninghome; the court held that for purposes of compensation under the Workmen s CompensationAct his duties began when he left home and ended when he returned. Pennsylvania defines"injury" to include all "injuries sustained while the employee is actually engaged in the fur-therance of the employers business "" PA. STAT. ANN. tit. 77, § 301(c) (1950).7 Voehl v. Indemnity Ins. Co., 288 U.S. 162 (1933) However, Ohio follows the rulethat "subject to call" is not an exception to the "going and coming rule." Cardwell v. In-dustrial Comm n, 155 Ohio St. 466, 99 N.E.2d 306 (1951) When an employee has finishedhis work and is on his way home, on a mission of his own, and is injured at a place where heis not required to be by his employment, it makes no difference whether he works regularhours or is subject to call by the employer. Richtarik v. Bors, 142 Neb. 226, 5 N.W.2d399 (1942) This view has been criticized on the ground that to make an award onlywhen the employee is working gives hun no greater protection than the worker with set hourswho has the remainder of the day free from employment. 41 NED. L. REV. 52 (1961)8. The Supreme Court of Tennessee held in Town of Tullahoma v. Ward, 173 Tenn. 91,114 S.W.2d 804 (1938), that a police officer in uniform, while walking home, was chargedwith the duty to preserve peace and order and, therefore, regardless of his immediate or ulti-mate destination, was in the scope of his employment. The Workmen's Compensation Actof Tennessee, like that of Ohio, limits "injury" to one resulting from an accident arising outof and in the course of employment. TENN. CODE § 50-902(d) (1956)[VoL 13:4Workmen's Compensation - Going and Coming Ruletains to or is incidental to his employment, (4) when the employee isfurthering the employer's business,'0 or, (5) when the injury results froma hazard of the employee's work."The causal connection between employment and injury defined bythe United States Supreme Court in Cudahy Packing Company v. Parra-more"1 was found to exist in Sweat v. Allen" where a police officerwas, injured while going to work. The court in the Sweat case reasonedthat even though the injury occurs while the police officer is going towork, the same causal connection exists as when a police officer is injuredwhile attempting to arrest a drunken driver.' 4Ohio follows the general rule that injuries are not compensable whenan employee is injured while going to or from work where such employeehas a fixed and limited working place.' 5 An exception to this rule iswhen the employee is still charged, while on his way to or after reachinghome, with some duty'5 or task in connection with his employment.79. In Kyle v. Green High School, 208 Iowa 1037, 226 N.W. 71 (1929), compensationwas granted where an employee, although not at his regular place of employment and beforeor after customary working hours, was discharging some duty incidental to the nature of hisemployment in the interest of, or under direction of, his employer. See also Smith v. IndustrialComm'n, 107 N.E.2d 220 (Ohio Ct. App. 1948).10. "Furthering the employer's business" has been applied in such situations as: where anemployee was injured on Sunday while going home after church to get a key to check hisemployer's furnace, Kromley v. Board of Educ., 13 N.J. Misc. 627, 180 At. 546 (Work-men's Compensation Bureau 1935); where an employee was injured going to work afterreceiving a phone call at home to go to work, Kyle v. Green High School, spra note 9;where the employee was returning home to phone in sales order after his day's service wascompleted, Bachman v. Waterman, 68 Ind. App. 580, 121 N.E. 8 (1918); where an em-ployee was returning home with an empty water can belonging to his employer to fill and takeit back in the morning, Ince v. Chester Westfall Drilling Co., 346 P.2d 346 (Okla. 1959);and where an employee was to pick up tools, Muir v. Wilson, 194 Pa. Super. 487, 168 A.2d588 (1961).11. Souza's Case, 316 Mass. 332, 55 N.E.2d 611 (1944). The court held that a travelingrepairman's death was compensable when he was burned while sleeping in a public boardinghouse,' for his employment brought him in contact with the risk that caused his death.12. 263 U.S. 418 (1923).13. 145 Fla. 733, 200 So. 348 (1942). The Florida statute contains wording similar to thatfound in section 4123.01 (c) of the Ohio Revised Code. Florida Statutes Annotated section440.02(6) (1952) provides: "The term 'injury' means personal injury or death by accidentarising out of and in the course of employment ....14. Id. at 735, 200 So. at 351. The mere fact that a policeman is required to hold himselfready to perform'certain duties at any hour of the day and night is insufficient to place himin the performance of his duties. To hold otherwise, would be to allow compensation, evenif the injury is received while he is at home or at a party or on a personal mission.15. 42 Omo Jut- Workman's Compensation S 53 (1936). The theory for excludingemployees from the benefits of workmen's compensation while "going to or coming fromwork" is that they are not performing any service for their employer and are exposed to risk,not as employees, but as members of the general public. To award compensation for injuriesreceived while going to or from work without any evidence that the cause of the injury aroseout of the work, .would convert the compensation plan into an insurance against injurieswherever and however received. Baumbach v. Industrial Comm'n, 59 Ohio App. 101, 17N.E.2d 389 (1938).16. The Supreme Court of Ohio held in State ex re!. Schoedinger v. Lentz, 132 Ohio St. 50,5 N.B.2d 167 (1936), that "duty" embraces all manner of duty imposed upon a police officer,1962]WESTERN RESERVE LAW REVIEWIn other words, if the employee is furthering the employer's business atthe tune of the injury,'8 that injury arises out of and in the course of hisemployment.Thus, a causal connection between the harm received and theemployment must exist. 9  The Supreme Court of Ohio has said thata causal connection exists if it is apparent to the rationale mind, uponconsideration of all circumstances, that there is a proximate causal con-nection between the conditions under which the work is required to beperformed and the resulting injury 20 Also the Ohio courts have awardedcompensation where the injury follows as a natural incident of the workand as a result of exposure occasioned by the nature, condition, or sur-rounding of the employment."' Such an exposure has been defined as ahazard of the employment 2 peculiar to the work and not common to thegeneral public in the community."3 The criterion to determine what ispeculiar to the work is not whether others are exposed to the same dan-gers of travel. The test is whether, with reference to the nature of em-ployment, performance of special service within the scope of such em-ployment and in interest of, or by direction of, the employer peculiarlysubjects the employee t6 added dangers out of which the accidentoccurs.24 Thus, in the Simmerlink case the Ohio Supreme Court drew arather fine distinction between anticipatory duty and actual performanceof duty as to police officers.RICHARD B. MoRITzindependent of the question of time, place, or manner of person. Lentz, a police officer, waskilled while cleaning his service revolver at home. The court reasoned that a police officerwho does an act, which by standing department rule or order he is under obligation to do, isengaged in the performance of his duty.17 Stevens v. Industrial Comm n, 145 Ohio St. 198, 61 N.E.2d 198 (1945)18. "Furthering the employers business" has been applied in such cases as: cranking a carat home which has been furnished by the employer, Industrial Comm n v. Wilson, 34 OhioApp. 36, 170 N.E. 37 (1939); sustaining injury while returning home with days receiptsfor safekeeping, Standard Oil Co. v. Clark, 44 Ohio App. 211, 184 NE. 861 (1933)19. Maynard v. B. F. Goodrich Co., 144 Ohio St. 22, 56 N.E.2d 195 (1944).20. Highway Oil Co. v. State ex rel. Bricker, 130 Ohio St. 175, 198 N_E. 276 (1935).However, an earlier case, Fassig v. State ex rel. Turner, 95 Ohio St. 232, 116 N.E. 104 (1917),appears to modify this definition. The rule announced in the Fasstg case apparently would notcover any case where the cause of injury was outside of and disconnected with the employment,although the employee may at the time have been engaged in doing the work of his employerin the usual way.21. Sebek v. Cleveland Graphite & Bronze Co., 148 Ohio St. 693, 76 N.E.2d 892 (1948)22. Tipplie v. High St. Co., 70 Ohio App. 397, 41 N.E.2d 879 (1942).23. Walborn v. General Fire-Proofing Co., 147 Ohio St. 507, 72 N.E.2d 95 (1947). In thecase of workmen whose duties are such that they are obliged to be continuously upon thestreet in the course of their employment, some courts make a distinction upon the theorythat the very nature of the employment subjects them to the street dangers more than personsgenerally are subjected to and consequently injuries from such dangers must be considered asarising out of and in the course of the employment. See Annot., 1916A L.R.A. 314.24. Smith v. Industrial Comm'n, supra note 9.[VoL 13:4

Workmen\u27s Compensation--Going and Coming Rule as Applied to Policemen

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Workmen\u27s Compensation--Going and Coming Rule as Applied to Policemen

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