Fireman's Fund Indemnity Co. v. Industrial Accident Commission , 39 Cal. 2d 529 ( 1952 )

CARTER, J.

I dissent.

The facts here are simple. They are more favorable to the employee, however, than portrayed by the majority opinion.

The injured employee, Mrs. Elliott, was working as housekeeper for Mrs. Hubbard at the latter’s home. Although she said her hours were eight a day, no definite working hours were fixed. She lived at the home and had her meals there. Mrs. Hubbard’s doctor had advised her to take a walk every day and it had always been her custom to do so. She would take her stroll either after the noonday or evening meal, depending upon when she could get away. Mrs. Hubbard was aware of this practice and may be said to have acquiesced in it. On the day of the accident, Mrs. Hubbard was ill in bed and told Mrs. Elliott to have her walk after the evening meal rather than earlier. Mrs. Hubbard also told her not to be gone long, giving rise to the inference that in view of her illness Mrs. Elliott was still working and on call. Contrary to the assertion in the majority opinion, that inference is not refuted by Mrs. Elliott’s testimony that after she had finished her work she went for a walk, as that was merely a way of saying that she had the opportunity at that time to take the stroll rather than that she was no longer subject to Mrs. Hubbard’s call and had to return soon to attend her. Mrs. Elliott emptied the garbage in a receptacle in the driveway by Mrs. Hubbard’s house and walked into the street which had no sidewalks. When about 50 feet from the driveway and in front of adjoining lots which Mrs. Hubbard had “sold” but for which she had not received her money, she stepped aside to avoid a car travelling on the road. She fell, she said, in the “lots.”

From the evidence the commission was justified in deducing that the injury occurred on the premises of the employer or that it occurred while Mrs. Elliott was in effect “on the job.” In either case there is no question that the injury occurred in the course of the employment. In addition, however, the injury clearly falls within the rule, that injuries arising out of activities for the personal needs, comfort and welfare of the employer are compensable. Mrs. Elliott’s walk was a habit and custom concurred in by her employer and in the instant case was expressly authorized. The cases clearly support an award of compensation under that rule.

In Papineau v. Industrial Acc. Com., 45 Cal.App. 181 [187 P. 108], an injury was held compensable where it occurred while the employee, a bootblack, was away from his employer’s premises to obtain a bottle of milk to drink with his lunch; it was his custom, with the approval of his employer, to get the milk. The court said (p. 182) : “Upon these facts petitioner insists that the injury did not arise out of, and in the course of, the employment of Miles. Three reasons are assigned for this contention: First, that the claimant had left the premises of the petitioner on a personal errand and was not engaged in the performance of any service for his employer; second, that the injury was not due to a risk incident to his employment, but caused from a peril common to all persons using the elevator; and, third, that the injury was caused by a joke perpetrated by the operator of the elevator.

“While it is sometimes difficult to distinguish the line between an injury arising out of, and in the course of, employment and one which does not so arise, nevertheless, the facts here presented bring the case within the rule announced in the opinion in Archibald v. Ott, 77 Va. 448 [87 S.E. 791, L.R.A. 1916D, 1013], wherein it is said: ‘Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. ’ In leaving the barber-shop, with the knowledge, consent, and approval of his employer, for the purpose of procuring a bottle of milk to use with his lunch, as was his custom, the claimant, while ministering unto himself, was, nevertheless, in a remote sense, in that one who works must eat, engaged in an act which contributed to his efficiency and furtherance of the work. Thus compensation has been awarded for an accident suffered where the employee had left the performance of his work to procure drinking water. (Keenan v. Flemington Coal Co., 5 F. 164, St. of Sess.) Other cases sustaining the rule are cited in the opinion in Whiting-Mead Commercial Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P. 1105, 5 A.L.R. 1518], wherein an award for an injury resulting to an employee from a burn sustained from igniting a turpentine-soaked bandage on his hand while lighting a cigarette for his personal use, was upheld. The fact that the elevator in question was controlled by the owners of the building is unimportant, for the reason that the tenant had the right, as an appurtenance of the premises leased by him, to the use of the elevator for himself and employees in going to and from the barber shop, and hence the elevator was a part of the employer’s premises. . . .

“That the elevators were for the use of all persons having occasion to use them as a means of access to the building could not affect claimant’s right to the award. A like argument might be made with reference to injuries susstained by persons whose employment requires them to travel upon lunes of railway or upon the public streets, right to recover for which is supported by ample authority.” (Emphasis added.) Doubt was cast upon that case by California Casualty Indemnity Exchange v. Industrial Acc. Com. 190 Cal. 433 [213 P. 257], but there the court took an ultraconservative attitude which has since changed except for an occasional decision such as here. (See 22 Cal.L.Rev. 581, 582.)

In the case at bar, where the employee went no more than 50 feet on the fronting street from the employer’s driveway for a walk which she was directed to take by her employer, we have a stronger case than the Papineau case.

In Western Pipe & Steel Co. v. Industrial Acc. Com., 49 Cal.App.2d 108 [121 P.2d 35], the employees were permitted to leave their work for an undesignated half hour to obtain dinner, while they were working overtime. Their pay covered the half hour. An employee left his work and drove to a place some distance from his employer’s premises to get his dinner and was killed while crossing the street. In holding the death compensable the court said (p. 110) : “The petitioner contends that the law is well-settled that an employer is not responsible for the act of, or injury to, an employee while the latter is off the premises for the purpose of securing his personal meals. There are many cases holding that injuries received by an employee while on his way to or from meals are normally not compensable. [Citations.]

“The basis of some of the eases which deny the employee compensation for injuries received while going to or from meals is that while the employee is on such an errand he is not rendering any service for his employer. Other eases recognize that this is merely one part of the so-called ‘going or coming’ rule—i.e., that injuries received while going to or coming from work normally do not arise out of, nor occur in the course of, the employment. There are, of course, many exceptions to both rules. It is not indispensable to recovery that at the time of the injury an employee must be rendering service to his employer. Acts of the employee for his personal comfort and convenience while at work, such as taking a drink of water, lighting a cigarette, warming himself, etc., do not interrupt the continuity of the employment. This exception is not limited to acts performed on the employer’s premises. In Western Pac. R. R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754], a messenger was struck by an automobile while returning on 'his bicycle to his place of employment from his home where he had gone to get Ms raincoat when a storm came up while he was outside performing service for his employer. The injury was held compensable. In Leffert v. Industrial Acc. Com., 219 Cal. 710 [28 P.2d 911], the deceased employee, a salesman, was required to report each morning at the employer’s plant to receive directions for the day. After getting their instructions, salesmen customarily had a cup of coffee together at a nearby coffee shop. On the morning in question the salesmen, on arrival, found the plant on fire and were directed to report at another office to receive instructions. Before going to this office the employees followed their usual custom of having a cup of coffee. The deceased, after finishing his coffee, announced his intention of returning to the burning building to retrieve his overcoat. While crossing the street to the building he was hit by an automobile. It was held that the injury was compensable, and an award denying recovery was annulled. (See, also, Whiting-Mead Commercial Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P.1105, 5 A.L.R. 1518].) ... The employer apparently realized that men could not be expected to work at their highest efficiency without food during this overtime period, and for that reason agreed that they should have half an hour off for the purpose of securing their dinner. ’ ’

In the case at bar Mrs. Elliott was hired by the month; her pay consisted of cash and board and room; she had no fixed hours of work and was authorized to go for a walk. Her compensation apparently covered that period. If an injury which occurred while getting dinner away from the employer’s premises with his permission is compensable, then the same must be said for an injury received while taking a walk at the direction of the employer.

In Whiting-Mead Commercial Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P. 1105, 5 A.L.R. 1518], the court affirmed an award for an injury received while the employee was smoking, and cited with approval various situations such as getting a drink of water, or beer, refreshment and responding to the call of nature.

In Goodrich v. Industrial Acc. Com., 22 Cal.2d 604 [140 P.2d 405], we held an injury to be compensable which occurred when the employee went home to inform Ms wife that he would be working all night. We stressed the proposition that an injury occurring while an employee is administering to his personal needs and welfare need not, to be compensable, occur on the employer’s premises. We summarized the cases on this question as follows (p. 607) : “There are many acts of an employee for his personal convenience, comfort or welfare, the doing of which do not necessarily take him out of the course of his employment, even though done away from the premises of the employer. (California Cas. Ind. Exch. v. Industrial Acc. Com., 21 Cal.2d 751 [135 P.2d 158].) Various instances of that character have been considered by the appellate courts: Drinking wine because of indisposition (Elliott v. Industrial Acc. Com., 21 Cal.2d 281 [131 P.2d 521] ; smoking (Whiting-Mead Com. Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P. 1105, 5 A.L.R. 1518]); going to obtain a slicker to wear in the performance of his duty (Western Pacific R. R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754]); going to obtain an overcoat (Leffert v. Industrial Acc. Com., 219 Cal. 710 [28 P.2d 911]); going into a hallway to obtain fresh air (F. W. Woolworth Co. v. Industrial Acc. Com., 17 Cal.2d 634 [111 P.2d 313]) ; going to obtain water for a fellow employee who had fainted (County of Los Angeles v. Industrial Acc. Com., 89 Cal.App. 736 [265 P. 362]); returning from purchasing a package of cigarettes for employee’s own use (Western Pipe etc. Co. v. Industrial Acc. Com., 49 Cal.App.2d 108 [121 P.2d 35]); domestic servant sewing a hem on her dress (Employers’ etc. Corp. v. Industrial Acc. Com., 37 Cal.App.2d 567 [99 P.2d 1089]).”

In Graf v. Montecito County Water Dist., 1 Cal.2d 222 [26 P.2d 29, 34 P.2d 138], the employee was injured while riding on the employer’s train operated for employee’s recreation and boarded after the work day had ceased. The court held injury not compensable, but Mr. Justice Shenk dissented, pointing out that the train was the employer’s premises.

The majority relies mainly on the ground that the injury occurred off the employer’s premises. As pointed out hereinabove, there is evidence to the contrary, but even if there were not, such is not the rule. The cases heretofore discussed show that an act done for the personal convenience and welfare of the employee need not he done on the employer’s premises to authorize compensation where the act done is customary and with the employer’s permission.

While the courts are required by statute (Lab. Code, § 3202) to liberally construe the Workmen’s Compensation Act, even a rational, nonliberal construction would sustain the award in this case.

I would, therefore, affirm the award.