Potter v. Realty Trust Co. , 60 Idaho 281 ( 1939 )

A petition for rehearing has been presented in which appellant says:

"One of the two major questions presented on the appeal and by the brief of appellants was based upon the proposition that at the time of his injury the claimant was not acting for or onbehalf of Realty Trust Company, but was merely in the serviceof the Elks Lodge. This question was briefed and argued orally at length. The opinion of this Court on file does not either refer to or decide the question so presented. We submit that it is important that the question be fully considered and decided."

We thought at the time the original opinion was rendered that it sufficiently covered the material errors assigned but after examination of appellant's petition, we have again reviewed the matters urged.

Potter testified that he started "down town" in his car to discharge "two duties"; One was "to deposit and make a record of the Elks money and the other was to receive a letter at the post office which I had been looking for for two days, in regard to a real estate deal. I wanted to know whether that letter was in because it would save me time in the morning; . . . . it was primarily to complete a real estate sale."

The contention is made by appellant that when the respondent was driving to the Realty Company's office to deposit the money he had collected for lodge dues, he was engaged solely in thebusiness of the lodge as employer and was in no way engaged in the business of the Realty Trust Company. In support of this contention counsel cite and discuss the cases of PressPublishing Company v. Industrial Accident Commission, 190 Cal. 114,210 P. 820, and Hartford Accident etc. Co. v. IndustrialAcc. Com., (Cal.App.) 256 P. 873.

An examination of these two cases discloses that, in the former (Press Pub. Co. v. Indus. Acc. Com.) the Supreme Court of California held that where the employee was rendering concurrent services of different character for two employers, and in doing so it was equally convenient to travel the same road in the discharge of the services for each employer, and an accident occurred under such circumstances, each employer would be ratably responsible. In the later case of Hartford Ace. etc.Co. v. I. A. C., the District Court of Appeals held there was no concurrent liability and analyzed and distinguished the Press Pub. Co. case, saying:

"Had the accident in question occurred at a time when the boy was concurrently engaged in his two separate occupations of delivering newspapers and assisting in the delivery of milk, in view of the decisions, and especially the case of PressPublishing Co. v. Industrial Accident Commission, . . . . it perhaps would follow that the proprietor of the newspaper would be liable for compensation to the boy as provided by the statute."

A study of the two cases leads to the conclusion that the court in each case was of the opinion that where an employee is working for separate employers on different tasks; and it is necessary or equally convenient to travel over the same road and in the same direction to discharge the several tasks requiring the attention of the employee; and an accident occurs while on such trip, each employer is liable. That on the other hand, if the employee has passed the common thoroughfare and is proceeding on the way that leads only to the one service and would not be used in discharging the other, only the employer being directly served would be liable.

As we view the evidence in the case before us, it brings this case within the rule announced in the Press Publishing Company case. In other words, here the employee Potter says that he was going "down town" to the Realty Company's office, where he kept on deposit the lodge funds, for the purpose of depositing funds he had collected that afternoon; and that he intended, after making such deposit, to proceed on to the post office (also "down town") and secure a letter (if it had reached the post office) for his other employer the Realty Trust Company. It seems, so far as the record discloses, that the route he traveled from his residence would have taken him, first, to the Realty Trust Company's office and from thence to the post office and that when the accident occurred he was on the way which he could and would have used in going to discharge either one of the duties. In such case it seems that where an accident occurs there is concurrent liability.

The petition is denied.

Givens, Morgan and Holden, JJ., concur.

Budge, J., dissents.