
    The Standard Oil Co. v. Clark.
    (Decided November 21, 1932.)
    
      Messrs. Holliday, Grossman & McAfee, for plaintiff in error.
    
      Messrs. Rowley & Carpenter, for defendant in error.
   Richards, J.

The Standard Oil Company was and is a self-insurer under the provisions of the Workmen’s Compensation Law (Section 1465-37 et seq., General Code). One of its employes, Armin Clark, was on August 17, 1930, in charge of the company’s' filling station located in the village of Willard in this county. His residence was at Plymouth, about seven miles distant from Willard, and at about 10 or 11 o’clock in the evening of the above date, when he was returning from his place of employment to his home, driving an automobile, he had a collision with another automobile and was instantly killed.

The Industrial Commission denied the claim presented by the widow, Aletha Clark, from which an appeal was taken to the court of common pleas, and in that court a judgment was rendered finding that she was entitled to participate under the Workmen’s Compensation Law. From that decision this proceeding in error has been brought.

The company’s Willard filling station was operated by two attendants, each having the same duties to perform. The station was operated from early in the morning to about ten o’clock at night, and the two men alternated in their periods of work. On the occasion in question Clark had the last trick, which would require him to keep the filling station open until ten o’clock at night. The book of instructions which was furnished to him provides that on closing the station the attendant must take all money from the cash drawer and leave no cash or coupon books in the station overnight.

On the night of August 17, 1930, Clark closed and locked the filling station, taking the receipts of the day with him, placing a portion of the receipts in a money bag furnished by the company and the balance in an envelope of the company, together with a report of the day’s sales. This package was then put in his lunch basket, and that was placed in his automobile. The company had no safe in its filling station, and provided no place for keeping the money which was taken in by the attendants. The agent of the company, in employing Clark, had instructed him when he was employed, to take the money home with him for safekeeping at the end of the day, rather than leave it in the station where no means for protection had been provided. It was Clark’s duty to take the day’s receipts with him, and to take care of the same for his employer, and then to bring the receipts back with him and remit the amount to the company at noon of the following day, and this practice had been followed to the knowledge of the company. Some testimony was offered tending to show that Clark could take care of the day’s proceeds at any place he saw fit, but the weight of the evidence shows that the facts were as above stated, and the court was justified in so finding. After Clark’s death the day’s receipts were found in his lunch basket, wrapped up as described, and secreted in his automobile. The place where Clark was killed was on a direct and usual route from Willard to his home.

On the trial of the case each party, at the conclusion of the evidence, moved the court for a directed verdict. The court overruled each motion, and neither party desiring to withdraw' its motion, the court without objection proceeded to determine the case upon its merits, and found that the plaintiff was entitled to participate in the workmen’s compensation fund. This court is satisfied that such finding and the judgment rendered thereon were required by the facts. The injuries plainly arose out of the decedent’s employment, and occurred in the course of his employment. The employment contract made it a part of his duty to take the day’s receipts home with him and care for those proceeds for his employer. When killed, he was in the performance of a duty enjoined upon him by his employment. His care for the funds while en route from the filling station to his home was as much a part of his duty as his work at the filling station. The case is directly within the principle decided by the Supreme Court in Inglish v. Industrial Commission, 125 Ohio St., 494, 182 N. E., 31, in which a school teacher who was returning from his school to his home, carrying examination papers, was killed en route, it being part of his duty to grade the examination papers at his home.

For the reasons given the judgment will be affirmed.

Judgment affirmed.

Lloyd, J., concurs.

Williams, J., not participating.  