CALIFORNIA CASUALTY INDEMNITY EXCHANGE v. INDUSTRIAL ACCIDENT COMMISSION ET AL

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District Court of Appeal, First District, Division 2, California.

CALIFORNIA CASUALTY INDEMNITY EXCHANGE v. INDUSTRIAL ACCIDENT COMMISSION ET AL.

Civ. 12130.

Decided: July 25, 1942

Burbank & Laumeister, of San Francisco, for petitioner. Everett A. Corton and Dan Murphy, Jr., both of San Francisco, for respondents.

Petitioner, as the compensation insurance carrier of Lathan Company, seeks the annulment of an award made by the respondent commission in favor of Cecelia Cooper, an employee of said Lathan Company.

The facts are undisputed. Said employee had worked for her employer as a bookkeeper many years. Her duties were performed entirely within the building of her employer. Said building was set back from the street on a corner lot and a private driveway of the employer ran in a semicircular fashion from one street to the other and in front of the entrance to said building. Said employee's normal working hours were from 8 a.m. to 4:30 p.m. She had the implied consent of her employer however to go upon short personal errands if she desired to do so.

On the day of the accident said employee drove her car to work in accordance with her usual custom. Said car belonged to her and was not used in any way for the purpose of her employer's business. On said day she desired to have said car greased while she was at work and she telephoned to a service station and requested such service. Said automobile was picked up and was taken to the service station for that purpose at 8:30 a.m. At about 4 p.m. she noticed that the car had not been returned. She telephoned the service station and, as the attendant was alone at that place, it was agreed that he would deliver the car to her and that she would drive him back to the service station. This was done and said employee then drove her car back and parked it on the private driveway on her employer's premises. As she was about to alight from her car and return to her employer's building to finish her work for the day she caught her heel in the hem of her dress and fell from the car to said private driveway and broke her wrist.

Upon the foregoing undisputed facts the respondent commission found that “Cecelia Cooper, while employed as a bookkeeper on October 27, 1941, at South San Francisco, by Lathan Company, Inc., sustained injury arising out of and in the course of her employment when she fell and broke her left wrist. * * *” The question of the sufficiency of the evidence to sustain said findings and the award based thereon is the question presented in this proceeding to review said award.

Section 3600 of the Labor Code, St.1937, p. 269, provides: “Liability for compensation * * * shall * * * exist against an employer for any injury sustained by his employees arising out of and in the course of the employment * * * in those cases where the following conditions of compensation concur: * * * (b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment. (c) Where, the injury is proximately caused by the employment * * *.”

It has apparently been the practice of the respondent commission to confine its findings under said section to findings with respect to whether the particular employee sustained injury (1) “arising out of” his employment and (2) “in the course of” his employment. In other words, no specific findings are ordinarily made following the wording of all the specified concurrent conditions found in subsections (b) and (c) of the section above quoted. We believe, however, that the concurrent conditions mentioned in said subsections are merely definitive of the preceding terms “arising out of” and “in the course of” the employment, and that findings in the ordinary form above mentioned are sufficient. When the question of the sufficiency of the evidence to sustain the findings is raised, however, the inquiry then is whether the evidence is sufficient to fulfill all of said conditions.

Petitioner herein contends that the evidence was insufficient to sustain the findings, express or implied, with respect to any of the above mentioned conditions specified in said section 3600 of the Labor Code. We need not discuss the evidence in its relation to all of these conditions as we believe it is clear under the authorities that the material finding herein that said employee's injury was one “arising out of” her employment finds no support whatever in the evidence and that the award must therefore be annulled.

The respondent commission takes the position that “since the evidence in this case shows that the employee was injured on the employer's premises to which she had returned for the purpose of finishing her work, she is entitled to compensation.” In other words, respondent commission thereby necessarily takes the position that the place of the injury is the sole test under the circumstances without regard to the cause of the injury. This position is obviously untenable as it totally ignores the express conditions of the section that the injury must be one “arising out of” the employment and must be one “proximately caused” by the employment.

We believe that the position so taken is the result of a misconception by the respondent commission of the effect of certain decisions which have sustained awards to injured employees where the employees had been injured on the employer's premises, or in close proximity thereto, while going to or coming from their actual work. The general rule commonly known as the going and coming rule, which ordinarily denies compensation to employees for injuries sustained while going to and coming from their actual work, has certain well recognized exceptions, and one of these so–called exceptions is illustrated by the decisions upon which the respondent commission relies. But none of these decisions has ignored the cause of the injury or made the place of the injury the sole test.

That the place of injury cannot be made the sole test under said section is well illustrated in the case of Storm v. Industrial Acc. Comm., 191 Cal. 4, 214 P. 874. The court there said, on page 6 of 191 Cal., on page 875 of 214 P.: “An injury, in order to be compensable under the terms of the Compensation Act (St.1917, p. 831), must have been sustained by the employee ‘arising out of and in the course of the employment,’ and must have been ‘proximately caused by the employment.’ ” It was conceded there that the injury had been sustained on the employer's premises and “in the course of” the employment but the award was annulled upon the ground that it was not one “arising out of” the employment and was not one “proximately caused by the employment.” On page 7 of 191 Cal., on page 875 of 214 P., the court said: “To render an injury compensable there must be discernible some relationship of cause and effect between the employment and the injury. ‘It is not sufficient for a workman to say, “I should not have been injured unless I had been where I was and doing the work which I was employed to do.” ’ Cooper v. Northeastern Ry. Co., 9 B.W.C.C. 129. It must be shown, in addition, that the injury was a natural or probable result of the employment, or of the conditions thereof. Such would seem to be the meaning of the requirement that it must have been ‘proximately caused by the employment.’ This case would have been no different, on principle, if the employee had been injured by a stray bullet coming from the scene of an attempted hold–up, several blocks away. Under those circumstances it would scarcely be claimed that the injury was proximately caused by the employment.''

The necessity of the existence of a causal connection between the employment and the injury is further illustrated by decisions in Larson v. Industrial Acc. Comm., 193 Cal. 406, 224 P. 744; California C. I. Exch. v. Industrial Acc. Comm., 190 Cal. 433, 213 P. 257; and Lumbermen's M. C. Co. v. Industrial Acc. Comm., 134 Cal.App. 131, 25 P.2d 22. In the last mentioned case, the court said at page 134 of 134 Cal.App., at page 23 of 25 P.2d, “There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. There must be some causal connection between the employment and the injury in the sense that, by reason of the employment, there was an unusual or additional exposure of the injured party to the kind or character of hazard and danger * * * which caused the injury. The injury must have its origin in a risk connected with the employment, and must have flowed from that source as a rational and natural course.”

In treating the subject of “Parking Cars on Employer's Premises,” Campbell in his work on “Workmen's Compensation,” Vol. 1, p. 198, cites certain cases from other jurisdictions in support of the rule in those jurisdictions but states, “A contrary and possibly better rule requires the premises in some way to cause the injury.” He cites in support of the “better rule,” Herrera v. Hartford Acc., etc., Co., 17 I. A. C. 28 and Industrial Comm. v. Enyeart, 81 Colo. 521, 256 P. 314. In both of said cases the employees were injured while on the employers' premises but the cause of the injuries in each case was a defect in the employee's automobile which the employee was driving at the time. In the Herrera case, the respondent commission held that “* * * although at the time of the injury applicant was within the actual confines of the employer's premises, the injury did not arise out of the employment since the injury was the result solely of a defective instrumentality brought to the employer's premises by the applicant herself for her own purposes, in no way related to the employment.”

The respondent commission cites and relies upon the holdings or language used in the following decisions: Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402; Judson Mfg. Co. v. Industrial Acc. Comm., 181 Cal. 300, 184 P. 1; Globe Ind. Co. v. Industrial Acc. Comm., 208 Cal. 715, 284 P. 661; Makins v. Industrial Acc. Comm., 198 Cal. 698, 247 P. 202, 49 A.L.R. 411; Starr Piano Co. v. Industrial Acc. Comm., 181 Cal. 433, 184 P. 860; and Pacific Elec. Ry. Co. v. Industrial Acc. Comm., 137 Cal.App. 245, 30 P.2d 444. To these may be added Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809. These cases illustrate the principle that an injury may be compensable even though the employee may not be actually at work with his tools at the time the injury is sustained. They further support the proposition that an employee may be said to be “in the course of the employment” under certain circumstances when he is going to or coming from his work and is at a point either on the employer's premises or in such close proximity thereto that the place of injury should be treated in the same manner as though it were a part of the employer's premises. But none of said cases involves the question before us here. In all of said cases, it was assumed or held that if the employee could be said to be “in the course of his employment,” then the cause of the injury was one “arising out of” the employment and the injury was “proximately caused by the employment.” Such causes were generally causes having to do with the condition of the premises or the condition of the traffic thereon. The dangers and risks involved were risks “connected with the employment,” and the injuries “flowed from that source as rational and natural cause.” In other words there was “some causal connection between the employment and the injury in the sense that, by reason of the employment, there was an unusual or additional exposure of the injured party to the kind and character of hazard and danger * * * which caused the injury.”

The authorities cited by the respondent commission do not sustain their position here. While the employee was admittedly injured on the employer's premises, the accident occurred at a time when she was not actually performing her duties but at a time when she was returning from a purely personal errand to resume the performance of said duties. She was in her own automobile and the cause of the injury was the catching of her heel in the hem of her skirt while she was still in said automobile. Said injury was in the same category as an injury resulting from a defective automobile brought upon an employer's premises for the employee's own purposes. In such cases there is no causal connection between the employment and the injury under the authorities above cited. We therefore conclude that the employee's injury here was not one “arising out of the employment” nor was it one “proximately caused by the employment.” Such injury was therefore not compensable.

The award is annulled.

SPENCE, Justice.

NOURSE, P. J., and STURTEVANT, J., concurred.