Wiseman v. Industrial Accident Commission

SPENCE, J.

I dissent.

The respondent commission made a finding that “Said employee did not sustain an injury arising out of and occurring in the course of employment on October 5, 1952.” The majority opinion annuls the award based upon that finding and necessarily holds, as a matter of law, that the injury was one “arising out of” and “proximately caused” by the employment. (Lab. Code, § 3600.) In my opinion, the evidence clearly indicates that the injury arose out of, and was proximately caused by, an alcoholic and adulterous debauch while the employee was engaged in “a frolic of his own,” and that it cannot be said, as a matter of law, that it arose out of and was proximately caused by his employment.

The authorities do not sustain the theory that every injury which is sustained by a traveling employee from the time

he leaves home until his return is a compensable injury. The general rule to which petitioners allude is set forth in Dalgleish v. Holt, 108 Cal.App.2d 561, 566 [237 P.2d 553], but it is there said: “However, this rule does not embrace all activities of a commercial traveler irrespective of their connection with the purposes of the employment. The conditions essential to compensation as set forth in section 3600 of the Labor Code apply equally to traveling employees; the status of an employee as a traveling salesman does not change a course of action which is not within the scope of the employment to one that is.” In that case, as well as in the so-called Lund case (State Emp. etc. System v. Industrial Acc. Com., 97 Cal.App.2d 380 [217 P.2d 992]), upon which petitioners strongly rely, the question was held to be one of fact under the evidence presented. The most that can properly be said here is that the question was one of fact rather than of law, which question has been resolved by the commission against petitioners.

The language used in affirming the denial of a claim in Lunde v. Congoleum-Nairn, Inc., 211 Minn. 487 [1 N.W.2d 606], appears germane to the present discussion. It was there said at page 607 [1 N.W.2d]: “Basically, the argument for relator is wrong in its seeming assumption that factors of time and place are decisive. It ignores the real determinant which is the employe’s activity of the moment. [Decedent’s] activity of the moment was wholly his own and, as found below, beyond the scope of his employment. That a traveling salesman is within his own ‘territory’ does not bring all his actions away from home within the compensation act. The risks of diversions on errands and for reasons personal to him are not all occupational as matter of law. . . . Too reasonable is the conclusion that course of employment of both was left for the time being for a detour leading to pleasure rather than business effort.” (See also Woodring v. United Sash & Door Co., 152 Kan. 413 [103 P.2d 837]; Warren v. Globe Indem. Co., (La.App.) 30 So.2d 346; Southern Casualty Co. v. Ehlers, (Tex.Civ.App.) 14 S.W.2d 111; United States Fid. & Guar. Co. v. Skinner, 188 Ga. 823 [5 S.E.2d 9]; Hurley v. Lowe, 168 F.2d 553.)

It may be conceded that the illegality or immorality of the acts of an employee do not compel a denial of compensation in all cases, but they were material here for the consideration of the commission in determining whether the injury to the employee arose out of and was proximately caused solely by a purely personal activity which was not reasonably contemplated by his employment. Petitioners do not urge that the illegal and immoral conduct of decedent here was reasonably contemplated, and the commission properly concluded that it was not. It follows that as the commission could reasonably infer that the injury and death arose out of and were proximately caused solely by such purely personal and uncontemplated activity, its finding that the injury did not arise out of the employment finds ample support in the evidence. The general language of the cases involving injuries incurred by the employee while engaged in reasonably contemplated activities on the employer’s premises or in accommodations furnished by the employer is therefore not in point here, and does not support the conclusion that the award of the commission should be annulled.

It seems clear that if a traveling employee should meet his death as the result of being shot by an intended victim while engaged in an illegal and uncontemplated personal activity such as an attempted robbery or an attempted rape by the employee of a guest in the employee’s hotel room, such death would be held noncompensable as a matter of law. It would arise out of and be proximately caused solely by the illegal and uncontemplated personal activity rather than the employment. It seems equally clear here that the commission could and did properly determine from the evidence, as a matter of fact, that the death arose out of and was proximately caused solely by the illegal and uncontemplated personal activity of the deceased employee rather than the employment.

I would therefore affirm the award of the respondent commission denying compensation.

Shenk, J., concurred.