From Casetext: Smarter Legal Research

Industrial Commission v. Heil

Supreme Court of Ohio
May 6, 1931
123 Ohio St. 604 (Ohio 1931)

Opinion

No. 22622

Decided May 6, 1931.

Workmen's compensation — Injuries not received in course of employment — Employe injured on way to work — Employer reimbursing employe for transportation expenses.

ERROR to the Court of Appeals of Clark county.

Theodore Heil was an employe of the E.W. Fulmer Company, hereinafter referred to as the company, which owned and operated an abattoir plant located on the south side of and near to the National Highway at a point between one and two miles west of Springfield, Ohio, and was a contributor to the state insurance fund. Heil lived in Springfield, and was the superintendent of the abattoir plant. The company paid him a salary of $40 per week, and in addition thereto agreed to reimburse him for the expense of his transportation between Springfield and the plant. This expense, however, was not to exceed $5 per week. Heil selected his own method of transportation. The company had no control over or interest in any conveyance by which he made his daily trips from his home to the plant and from the plant to his home. He often used a taxicab, but did not always do so.

Heil's duty at the plant necessitated his leaving his home between four and five o'clock in the morning. He had no duties to perform for the company at any place other than at the abattoir plant.

On December 24, 1927, Heil called a taxicab to come to his home in Springfield, and shortly after four o'clock a. m. he started in the taxicab as a passenger for his place of employment. He was driven west by the driver of the taxicab on the National Highway to a point about two blocks east of the point where a private lane led from the south side of the highway to the abattoir plant, at which point he alighted from the taxicab, dismissed the driver, and started to walk the remainder of the distance to the plant by way of the National Highway and the private alley. While so walking on the highway, and when about 300 feet east of the private alley, he was struck by an automobile traveling at high speed on the highway, and was seriously injured.

In due time Heil presented his claim for compensation for injuries received to the Industrial Commission. His claim was rejected on the ground that his injuries were not received in the course of his employment. A rehearing was granted by the commission, and the claim again examined and rejected on the same grounds. The common pleas court rendered judgment in favor of Heil, and the Court of Appeals affirmed the action of the trial court. The Industrial Commission prosecutes error to this court, claiming that there was no evidence tending to show that Heil was injured while in the course of his employment, and for this reason the trial court should have sustained the motion of the Industrial Commission for a directed verdict in its favor.

Mr. Gilbert Bettman, attorney general, Mr. R.R. Zurmehly, and Mr. Otho L. McKinney and Mr. Orville Wear, prosecuting attorneys, for plaintiff in error.

Messrs. Todd, Tehan Lorentz, for defendant in error.


There is no dispute in the evidence about the facts. The sole question in the case is, was Heil injured while in the course of his employment? He was injured while he was on his way from his home to his place of employment. The injury occurred on the public highway, and before he had reached the property of his employer. He had no duties to perform for his employer until he reached the abattoir plant. His position at the time of his injury was no different from what it would have been had he been on his way to the abattoir plant where his duty there would have required him to run a stationary engine in the plant. He could not possibly do any of the things he was employed to do until he reached the plant itself. That is where his duties began in the morning, and where they ended in the evening after he had finished his day's service as superintendent.

Counsel for Heil contended before the commission, in the trial court, in the Court of Appeals, and in this court, that Heil was in the employ of the company and acting in the discharge of his duties from the time he left his home until after the accident happened. Our attention is called by counsel for Heil to cases in which a traveling salesman, while traveling for his employer, is held to be in the course of his employment wherever he may be at any time, and it is said that the decisions in cases of that character are applicable here. We see no similarity between the two classes of employes. The traveling salesman is employed to travel and sell goods. Necessarily he is continuously in the discharge of his duties when he is traveling in his allotted territory for the purpose of selling goods. The mere fact that the company elected to reimburse Heil for his expenses in traveling between his home and the abattoir plant, on account of the distance he had to travel, and on account of the early hour he was to reach the plant in the morning, cannot affect the situation in the least. Had there been a street car line, or an interurban line, or a bus line running between Springfield and the plant, Heil might have used any one of them to effect the purpose he had in mind. He sometimes used a friend's car, and at other times used a public taxicab.

If it be true that Heil was in the service of the company and in the scope of his employment from the time he left his home until he reached the plant, then it must follow that, if he had hired a car and driven it himself on the highway, and in so doing he had carelessly injured some other traveler upon the highway, the company would be liable to the injured party for the negligence of Heil because he was at the time acting within the scope of his employment.

Counsel for Heil fully appreciate that it is quite necessary to establish the fact that Heil was in the course of his employment from the time he left his home in Springfield until he was overtaken by the accident. The whole case depends upon that one question. We are quite unable to see any substantial merit in the proposition that an employe whose duties have a fixed situs can be in the discharge of those duties when he is a mile away, traveling upon a public highway for the purpose of reaching his place of employment. If the proposition presented is tenable, then it is quite immaterial whether he is a mile away or fifty miles away, or whether he be traveling by any of the ordinary modes of travel or traveling in an airplane.

The following cases sustain the conclusion we have reached: Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St. 232, 116 N.E. 104; Conrad, Admx., v. Youghiogheny Ohio Coal Co., 107 Ohio St. 387, 140 N.E. 482, 36 A. L. R., 1288; Edwards v. Wingham Agricultural Implement Co., Ltd., 109 L. T. R. (N.S.), (Eng.), 50, 6 B. W. C. C., 511; Erickson v. St. Paul City Ry. Co., 141 Minn. 166, 169 N.W. 532.

The trial court was clearly in error in not directing a verdict in favor of the Industrial Commission. The judgments of the trial and appellate courts will be reversed, and final judgment entered here in favor of the Industrial Commission.

Judgment reversed and final judgment for plaintiff in error.

MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and ROBINSON, JJ., concur.


Summaries of

Industrial Commission v. Heil

Supreme Court of Ohio
May 6, 1931
123 Ohio St. 604 (Ohio 1931)
Case details for

Industrial Commission v. Heil

Case Details

Full title:INDUSTRIAL COMMISSION OF OHIO v. HEIL

Court:Supreme Court of Ohio

Date published: May 6, 1931

Citations

123 Ohio St. 604 (Ohio 1931)
176 N.E. 458

Citing Cases

Ruckman v. Cubby Drilling, Inc.

In determining whether an employee is a fixed-situs employee and therefore within the coming-and-going rule,…

SILVERS v. ELCO STEEL COMPANY

Ohio courts have traditionally determined whether an employee has a fixed or non-fixed situs of employment by…