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District Court of Appeal, Fourth District, California.


Civ. 2992.

Decided: August 18, 1942

Head, Wellington & Jacobs and Winthrop O. Gordon, all of Santa Ana, for petitioners. Everett A. Corten, of San Francisco, for respondents.

Petitioners seek to annul an award of the Industrial Accident Commission in favor of Nellie Rockwell on account of injuries sustained in an automobile collision. The commission found that the injury occurred in the course of and arose out of the applicant's employment by both of the petitioners.

L. Andrew Cox is the son of Viola W. Cock. He and his wife and Mrs. Cock lived in a house in Tustin which belonged to some trust created in connection with the estate of Mrs. Cock's deceased husband. At the time in question Mrs. Cock's daughter, Mrs. Elmslie, was also staying in the home, having come to care for her mother, who was quite elderly, while Mrs. Cox was in the hospital. Shortly before May 3, 1941, Cox interviewed the applicant with the idea of engaging her as a domestic servant. The applicant testified that at this conversation “he used the word ‘we’ or ‘us' and he told me what they wanted in the way of a worker”; that he told her they wanted someone to keep the house, buy the food, cook the meals, be company for his mother, play rummy with her, help her with her flowers, “in fact, anything that she might desire”; that he said they would pay $26 a month with board and room and she agreed to work for that. She went to work on May 3, 1941, and worked until May 10, 1941, when the accident happened. She testified that during this time she cleaned the house, bought the groceries, cooked the meals and did the washing. She testified that she did not assist Mrs. Cock with her flowers and that she spent a part of one evening with her playing rummy. On the afternoon of May 10, 1941, she accompanied Mrs. Cock and Mrs. Elmslie on a trip to Huntington Beach. The car was owned by Mrs. Cock and driven by Mrs. Elmslie. While on this trip a collision occurred between that car and another automobile, causing the injuries in question.

It is admitted that the applicant was the employee of Mr. Cox and the first question presented is whether an employment relationship also existed as between her and Mrs. Cock. Mr. Cox hired her and he is the person who made the agreement to pay her, although the accident happened before a cash payment became due or was paid. The respondents argue that Cox's use of the words “we,” “us” and “they” in his first conversation with the applicant indicates that in hiring her he was acting both for himself and for his mother. Aside from the rather unusual circumstance of having two employers in one small family, Mr. Cox had told the applicant how particular his wife was about the house work and it would be as reasonable to suppose that in using the plural he was referring to himself and his wife as to suppose that he was referring to his mother in the sense of purporting to act for her in making a contract of employment. If it be inferred that he had reference to his mother it would also be reasonable to infer that he was speaking of her merely as a member of the family. If it be inferred that he was speaking for his mother in hiring the applicant, it would be necessary to further infer that he was authorized to thus act and that he intended to act both as principal and as agent at the same time.

Mr. Cox told the applicant the time at which he desired his meals on several occasions but apparently gave no other specific instructions after the first interview. The applicant testified that Mrs. Cock and Mrs. Elmslie gave her orders from time to time as to what they wanted done, what she should cook, and the like. Mrs. Elmslie gave most of these orders, as Mrs. Cock was hard of hearing. It is not contended that Mrs. Elmslie was also an employer of the applicant and for the purpose of establishing the employment relationship here in question it seems to have been inferred throughout that she acted as the agent of her mother but was not acting as the agent of Mr. Cox. At the same time, for the purpose of showing that the accident occurred within the scope of the applicant's employment, it is inferred not only that the sister was the agent of the mother but that she was also the agent of the son in giving the orders in connection with taking this trip, so as to bind him also.

The giving of these orders, with inferences from inferences thus based upon other inferences, is cited as sufficient to show an employment of the applicant by both the son and his mother. It has been frequently pointed out, in connection with matters relating to the course of employment, that the status of a domestic servant, with indefinite hours and being somewhat subject to call at all times, is quite different from that of the ordinary employee who works certain fixed hours in a business location. It is equally true, with respect to the question as to who is the employer, that the value and effect of evidence as to who gives the orders, directions or suggestions, is quite different in the two situations. That various members of a family or household may make suggestions or give instructions to a servant, with respect to things that it is desired to have done, is in accord with common experience, but that the giving of such “orders” indicates an employment relationship and makes such persons also the employers of the servant, in a legal sense, seems both an unusual and somewhat tenuous conclusion. The evidence relied upon by the respondents to establish an employment insofar as Mrs. Cock is concerned is unsatisfactory, to say the least.

The next question presented is whether there is substantial evidence to support the finding that the applicant was acting within the scope of her employment in going upon this trip, or whether it was a mere pleasure excursion unconnected with her duties. One of the conditions for imposing liability for compensation upon an employer is that the injury in question be one which “is proximately caused by the employment.” Labor Code, § 3600, subd. (c), St.1937, p. 269. “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.” Lumbermen's M. C. Co. v. Industrial Acc. Comm., 134 Cal.App. 131, 25 P.2d 22, 23.

Disregarding the evidence on behalf of the petitioners, the applicant's testimony in this connection may be briefly summarized as follows: On the morning of May 10, “they” had mentioned that they were going to Huntington Beach that afternoon to get some dahlias “and said if it didn't interfere with my work, they would take me with them.” That morning Mr. Cox had said that he wanted his dinner about four o'clock that afternoon. About noon she “practically aside from the meals had completed the day's work” and Mrs. Cock told her she might go and visit her sister until time to prepare the four o'clock dinner. She did so and returned about 3:30. She then found that Mr. Cox had returned early, had eaten his meal and gone, and that a meal would not be required at that time. She testified: “And they told me they were ready to go, and I was tired––I had had an exceptionally hard week and a hard day, and I asked to be excused, and said that I had some work of my own to do. As a matter of fact, it was some letters I was going to write, but they told me I could do that some other time, and that I could prepare their meal after our return.” She was then asked: “Then what was done?” She replied: “Well, it rather left me without a choice.” She was then asked: “Anyway you were requested to go with them?” and she answered: “Yes, it amounted to a request.” She further testified that Mrs. Elmslie was the one who did the talking and when asked to tell what was said she replied: “She said they were ready to go on this trip.” When asked if anyone had ordered or instructed her to go she replied: “No, but they argued that I should go.” When asked if Mrs. Elmslie had not given her permission to decide whether or not she wanted to go, she replied: “Well, I wanted to keep my job.”

The applicant's contention was and is that in her own mind she construed Mrs. Elmslie's statement that they were ready to go as amounting to a request to her that she accompany them and that she considered this necessary in order to keep her job. That she had no reasonable grounds to fear the loss of a job appears from her own testimony as to the manner in which the request or invitation came about and was made, and from the further fact that a day or two earlier Mrs. Cock had expressed both satisfaction with her work and a desire to take her with her when she later moved to a house in Santa Ana which she had purchased.

It appears without contradiction that Mrs. Cock said nothing to the applicant about her going just before they started on this trip and that she did not tell anyone else to do so. Mr. Cox knew nothing either about the trip or about the applicant's participation therein. The fact that the mother and daughter had mentioned the trip that morning, and had said that they would take her with them if it did not interfere with her work, strongly indicates an intention on their part that her going was to be something apart from her work and that she was to be given the pleasure of the trip only in the event that this could be done without interference with her duties. At that time they all expected Mr. Cox to come for his meal about 4 o'clock and the preparation and serving of this meal might well have interfered with her going. When she returned to the house about 3:30 o'clock it had developed that such service was not needed and there was nothing for her to do for a few hours. She had completed all of her work with the exception of that in connection with the evening meal, she had already been off duty since noon, and that all parties concerned had it in mind that this situation was to continue for several hours more is rather strongly indicated by the fact that they had previously told her they would take her on this trip only if it did not interfere with her work and by her testimony that when they said they were ready to go she demurred saying she was tired, that she told them she had some letters to write, and that Mrs. Elmslie replied “You can write letters any time, and you can prepare what Mother and I want for dinner after our return.” While the applicant testified that “they argued that I should go” an argument of the nature which here appears is quite different from express, or even implied, instructions to a servant as to service required of her and the evidence in its entirety quite clearly suggests that this was an accepted invitation for a pleasure trip during a time when the applicant's services were not required, rather than an act done in the course of and within the scope of her employment.

Considering this portion of the evidence and viewing it in the light most favorable to the applicant it seems almost unbelievable that she could have regarded the suggestion that she accompany the others on this trip as a request amounting to an order, rather than as a mere invitation or friendly courtesy intended to contribute to her pleasure, which left her free to accept or not without endangering or affecting the security of her employment.

If we assume, however, that a contrary inference could be drawn by the finder of fact and further assume that thus far there is some evidence which is sufficiently substantial to support the finding made in this connection, we are confronted by the fact that the applicant had theretofore sworn to an affidavit in which she said: “That Viola Cock and Mrs. Elmslie then invited affiant to go on an automobile drive with them, which she did, and on this trip the accident occurred. The affiant was not ordered or instructed to go on said drive, but was permitted to decide for herself whether or not she wanted to go.” That affidavit was prepared by applicant's counsel in connection with a damage action which he stated to the referee he contemplated bringing. Apparently, it was desired in that action to establish the fact that this applicant was a guest of Mrs. Cock and Mrs. Elmslie. At the hearing in this matter this evidence was produced and it was stipulated that the statements made by the applicant in that affidavit were true. Counsel for the respondents now argues that a conflict exists between what the applicant had said in this affidavit and what she said as a witness in this proceeding, and that the referee was free to accept her present testimony as true. Passing over the question whether the applicant's testimony in this proceeding was substantially in conflict with what she had said in the affidavit, and disregarding other considerations which seem obvious, a situation is here presented which differs materially from a mere conflict in the evidence. The stipulation was not merely that the witness had made these other statements which were somewhat at variance with the state of facts which she was seeking here to inferentially establish, although she was apparently careful not to directly testify to such a state of facts. The stipulation was that the statements she had made to the effect she was invited to go on this trip, that she was not ordered or instructed to do so, and that she had been left free to decide whether or not she wanted to go, were true statements. As a result of this stipulation these became established facts in this case and no longer did any conflict exist with respect to the facts in that regard. Regardless of any possible but doubtful inferences from other portions of the evidence the essential facts that the applicant was not instructed to go on this trip but that she exercised her own choice and accepted an invitation tendered to her were thus established. Those matters were conclusive, under the circumstances which here appear, upon the question of whether the making of this trip was an act within the scope of the applicant's employment. It follows that the finding that the injury here in question was one “arising out of and occurring in the course of said employment” is not sustained by any substantial evidence.

The award is annulled.

BARNARD, Presiding Justice.

GRIFFIN, J., concurred.