Skip to main content


Reset A A Font size: Print

District Court of Appeal, Second District, Division 1, California.


Civ. 13243.

Decided: November 19, 1941

James A. Walker, of Salinas, and Joseph Hansen and Arthur G. Baker, both of Los Angeles, for petitioners. Everett A. Corten and J. Gould, both of San Francisco, for respondent Commission.

The applicants for a writ of review herein are seeking annulment of an award of the Industrial Accident Commission denying to them a death benefit by reason of the death of Robert Andrew Elliott, husband of petitioner Mabel May Elliott and father of the remaining petitioners, and which death, according to the contention of petitioners, arose out of and in the course of decedent's employment with Globe Grain & Milling Company.

In the main, the facts are undisputed, and as revealed by the record, are that decedent was employed as an electrician and millwright by respondent milling company. He reported for work on the morning of February 17, 1940, about 7 o'clock, feeling somewhat ill. As to the cause and nature of his illness there is some conflict. In a letter written by Dr. I. A. Munk, who attended Mr. Elliott during his last illness, and which letter was addressed to the attorney for petitioners and appears in the record, it is stated that in obtaining a history of the case Dr. Munk was informed by decedent that the latter had “inhaled Ves–Spray, a weevil insecticide, at 8 o'clock a. m. February 17, 1940, while at work as electrician cleaning motors. * * At 9 o'clock of the same day he took sick with nausea and vomiting.” Opposed to the foregoing as being the cause of decedent's indisposition there appears in the record testimony of petitioner Mabel May Elliott that on the morning in question her husband was suffering from a cough and cold; and there is also the testimony of Peter J. Fordahl, a fellow employee, that on the morning of February 17, Mr. Elliott informed him that he was not feeling very well, and in response to a question as to what Mr. Elliott said to the witness in connection with the state of his health, Mr. Fordahl testified: “He says, ‘I am not feeling well.’ I said, ‘What seems to be the matter?’ He said, ‘I think it is after the flu; I had a slight attack of the flue some time ago and I think that's the effect of it,’ were the very words he used.”

From the record it appears without contradiction that on arriving at work around the hour of 7 o'clock, Mr. Elliott informed his coemployee Fordahl that he was not feeling well, whereupon Mr. Fordahl asked the decedent if he thought a drink of wine would make him feel any better. Receiving an affirmative reply, Mr. Fordahl went to his clothes locker where he secured a quart bottle marked “Muscatel wine”, but which actually contained carbon tetrachloride. This bottle he handed to Mr. Elliott; the latter swallowed some of the contents, and as a consequence died two days later.

Elliott's fellow employee, Mr. Fordahl, testified that he had found the bottle, covered with a sack, in the employer's carpenter shop about two weeks prior to February 17, 1940, and thinking it was wine, had placed it in his locker, where it remained until he tendered it to Mr. Elliott. The evidence also indicates that the employer kept some large drums of carbon tetrachloride on the premises for use in killing weevils and moths. It should, however, be noted that the chemical was neither kept nor used in the carpenter shop. Notwithstanding petitioners' contention that the contents of the bottle were taken from one of the employer's carbon tetrachloride drums, there is no direct evidence that such was the case, nor is there any evidence that the employer knew of the existence of this bottle. At the hearing before the commission it was testified that the employer had in force a strict rule against keeping or drinking liquor on the premises, and that the violation of this rule by any employee would result in his dismissal.

At the time decedent consumed the poisonous substance under the erroneous belief that it was wine, he was in the course of his employment, having reported for work and later having gone with a fellow employee to the employer's stockyards, at which place he became so ill that he was unable to work and laid down to rest. However, it is contended, by respondent commission that the death of the employee did not arise out of the employment. There are cases which more or less directly bear upon the question here presented. In Archibald v. Ott, 77 W.Va. 448, 87 S.E. 791, 792, L.R.A.1916D, 1013, the rule is stated thus: “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. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of the work. * * *”

Concrete examples of cases recognized as coming within the rule are narrated in Whiting–Mead Commercial Co. v. Industrial Acc. Comm., 178 Cal. 505, 173 P. 1105, 5 A.L.R. 1518. In the case just cited the facts were that while at work on one of the employer's jobs the employee ran a nail into the palm of his hand, but the wound was not so severe as to cause him to cease his work, although the hand had to be bandaged. Twice during the day, once at noon and once at 3 o'clock, the bandage was soaked with turpentine by an agent of the company in an endeavor to alleviate the pain caused by the nail wound. Soon after the second application of the turpentine the employee temporarily ceased his labor and struck a match for the purpose of lighting a cigarette. The saturated bandage was ignited by the match and the hand was seriously burned. Compensation was allowed by the commission and such award was affirmed upon review.

In approaching a consideration of the facts presented to us in the instant proceeding, we are not unmindful that the law under which respondent commission functions in these cases is founded upon sound public policy and with the objective of protecting, in proper cases, a workman and his dependents against economic insecurity (Moquin v. Industrial Acc. Comm., 33 Cal.App.2d 511, 92 P.2d 413); neither do we overlook the fact that the law favors the payment of compensation for industrial accidents. However, the law contemplates payment of compensation only when the injury sustained is an ordinary or natural incident of the employment. The illness from which the employee suffered in the instant case was not occasioned by or through his employment. The record contains evidence warranting a finding that the employee's indisposition was either an aftermath of a recently suffered attack of influenza or an existing acute cough. Injuries arising from such acts as are necessary to the welfare, comfort and convenience of the employee while at work are compensable when such acts may be recognized as dangers that may be necessarily contemplated in the course of employment and therefore are inevitable incidents of such employment. Injuries thus arising are classed as acts resulting from the employment. That a man will drink water while at his work; warm himself when cold; smoke cigarettes in the absence of a rule prohibiting his doing so; will stop to rest when tired or exhausted, are recognized as manifestations of ordinary human behavior. True, in doing these things he ministers, strictly speaking, unto himself, but these acts, in a remote sense at least, contribute to the furtherance of his work.

In the case before us, however, the conduct of the employee was not such as could be said to even remotely arise out of his employment. The illness from which he suffered was not attributable to his employment, nor did it arise by reason of such employment. If his illness was not an ordinary and natural incident of his employment, then it necessarily follows that his attempt to minister to his illness by drinking what he believed to be wine was not ordinarily and naturally incidental to his employment. Here the employer had done nothing to authorize or induce the decedent to take the poison on the supposition it was wine or something which the employee needed or which would be beneficial to the latter. On the contrary, it is revealed by the record that decedent's mistake was the result of his own voluntary action brought about through the suggestion of another employee. And the substance offered by the fellow employee, and which the decedent mistakenly believed to be wine, was not left on the premises by the employer but was obtained from the locker of a fellow employee. The situation here is not comparable to cases where the employee does something inevitably or naturally connected with his employment and an incident thereto, such as mistakenly drinking foul water or some poisonous liquid placed at a point where one might reasonably mistake such deleterious substance for drinking water. As was said by the court in the case of O'Neil v. Carley Heater Co., 218 N.Y. 414, 113 N.E. 406, 407, L.R.A.1917A, 349, “It seems to us that the case is not different than it would have been if the decedent, voluntarily acting upon the advice of a stranger, had visited a physician who injured him by malpractice, or had sought a dispenser of prescriptions who gave him poison instead of helpful medicine, and certainly it could not be said that such an occurrence would have arisen out of his employment within the meaning of the statute.”

In view of the foregoing conclusion at which we have arrived, it becomes unnecessary to consider petitioners' claim that the findings made by the commission are inadequate, insufficient and amount only to conclusions of law. Under the factual background presented by the proceeding now before us, the sufficiency of the findings must be upheld.

The award is affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.

Copied to clipboard