EDWARDS v. HOLLYWOOD CANTEEN (1945)

Plaintiff sued on account of personal injuries suffered by her at a recreation center operated by defendant. The court awarded her judgment in the sum of $5,000 general damages and for loss of earnings she was awarded the additional sum of $2,870.00. Despite the numerous assignments and voluminous briefs only two questions are presented for decision, namely, (1) whether plaintiff was an employee of defendant in operating the recreation center and as such entitled to recover for injuries suffered through the negligence of defendant in permitting a boisterous and disorderly man to dance with her in its dance hall, and (2) whether the superior court had jurisdiction of the action.

The defendant is a corporation organized for the purpose of maintaining a recreation center for men in the armed forces of the United States and to engage the services of competent women artists and professional dancers to assist defendants in furnishing entertainment to such enlisted men as might be admitted. Pursuant to its purpose the corporation established such recreation center in the heart of the Hollywood district of Los Angeles and it became known as the ‘Hollywood Canteen.’ Its principal feature was a dance hall with orchestra. Its hardwood dance floor was 33 by 50 feet. On each side of it were eight loose tables each of which was surrounded by three chairs for the accommodation of those partaking of refreshments. Adjacent to the west end of the dance floor was the stage, two feet above the floor. On its north side and at the east end were open aisles about five feet wide separating the dance floor from the ‘snack bar’ and other quarters of the building.

About September 1, 1942, a group of 300 young women of the American Federation of Radio Artists volunteered to assist defendant in its canteen by acting as junior hostesses in the entertainment of the enlisted men. None received pay. Their efforts were rendered as a contribution to the war effort on behalf of the local entertainment industry. Every evening at the canteen they were engaged in dancing with the guests of defendant. Plaintiff regularly attended as a lieutenant of the junior hostesses and performed all duties assigned to her. While the canteen was estimated to accommodate only 500 men at one time, a system was established whereby groups of that number were successively permitted to enter with a view to the admission of all desiring to attend. To insure safety as to the personnel of the men each group before entering was inspected by members of the military police and of the shore patrol.

About 10:45 o'clock p. m. of October 31, 1942, while plaintiff was on the floor in the performance of her office a new group of service men was admitted. They promptly engaged in partaking of refreshments and in dancing with the young women. Fifteen minutes later plaintiff was introduced by another junior hostess to a marine who expressed his preference to dance with respondent. At the commencement of their dance together the marine began to perform the antics of the ‘jitterbug’ without plaintiff's consent and against her wishes emphatically espressed. He executed queer, weird and unusual steps and figures. This performance continued ‘fast and furious' down the two sides and across one end of the dance floor while respondent protested to him and vainly screamed for help to be released. As they approached the stage at the east end the marine gave her a violent spin in which she slipped, struck the edge of the stage and fell in a sitting position to her serious injury.

For the purpose of charging defendant with liability for her injuries, plaintiff alleged the negligence of defendant in its conduct of the canteen in five respects, to-wit: (1) Maintained loose tables on the floor and permitted them to be pushed about thereby exposing the dancing couples to the hazard thereby created; (2) permitted its floors to be polished and covered with slippery substances to such extent as to make it dangerous to dance thereon; (3) granted to its guests the privilege of purchasing and imbibing liquors while in the canteen; (4) allowed a greater number of dancers on the floor than it could safely accommodate; (5) entertained rough and boisterous men who were careless in their treatment of junior hostesses. The court found contrary to all of the allegations except the last. It was determined that the dancing partner of plaintiff was a disorderly and boisterous marine and that his behavior was a proximate cause of the injuries.

As a predicate for such finding the court found from the evidence that the city of Los Angeles had in force at the time plaintiff received her injuries ordinances which made it a misdemeanor for any person ‘to permit any intoxicated, boisterous, or disorderly person to enter, be, or remain in or to assist in any such public dance hall, public dance or club dance.’ Ordinance 38456, Sec. 6; 41.34(b) Municipal Code.

The court found that the canteen of defendant was a public dance hall and that the dance on the occasion of plaintiff's accident was a public dance. In such finding the court is fortified by universal usage and by legal decisions. Webster's International Dictionary; The Oxford English Dictionary; 50 C.J. 844, 845. Defendant had no invited guests but admitted any member of that part of the public included in the armed forces. While the court found that the excess of dancers on the floor was not a proximate cause of plaintiff's accident, nevertheless it determined that the dancing of the jitterbug by the marine on such a crowded floor constituted rough and boisterous conduct within the meaning of the city ordinances. That the ‘jitterbug’ on a crowded dance floor, led by a boisterous man who with violence forces a dainty young lady against her will and protest to perform perversions of the terpsichore, is boisterous conduct and that he is a boisterous person is established by excellent authority. Boisterous is defined as violent; rough in operation; violent and rough in behavior; coarse in quality. The Oxford English Dictionary; Webster's International, Dictionary. That defendant's violation of the cited ordinances proximately contributed to the fall of plaintiff and to the injuries she received is abundantly supported by the evidence. By thus violating city ordinances in permitting the marine to remain in the canteen and to conduct himself rudely and boisterously toward plaintiff contrary to her wishes defendant failed to provide plaintiff with a safe place to dance or with safe dancing partners and failed to do everything reasonably necessary to protect her against injuries.

Inasmuch as the court below found respondent to have been free from negligence, in order for her to be entitled to recover it must be determined that she was an employee of appellant as defined by the law of this state. But before discussing that question we must dispose of an extraordinary demand of respondent.

Respondent's Demand

Respondent contends that the trial court erred in finding against her with respect to the four charges of negligence determined adversely to her. For a recorded demonstration of her disappointment, at the last moment she urged this court to make new findings of the ultimate facts upon the ground that those made by the court below were purely evidentiary. This motion will be denied. Where the finding of a single material act of negligence will support the judgment failure to find for plaintiff upon other issues is immaterial to the decision. French v. Freeman, 191 Cal. 579, 590, 217 P. 515. In such event the appellate court will not be concerned as to whether the trial judge disbelieved certain tesimony offered by the respondent or found from all the evidence against respondent with respect to all the issues except one. See 24 Cal.Jur. p. 947.

Respondent Was an Employee of the Canteen

Prior to 1911 the relationship of master and servant was governed by the common law and the coruts were the only agencies for the settlements of justiciable claims of employees against employers. In that year the legislature adopted the ‘Roseberry Act’ ‘relating to the liability of employers for injuries or death sustained by their employees, providing for compensation for the accidental injury of employees, establishing an industrial accident board * * * defining its powers and providing for a review of its awards.’ Statutes 1911, p. 796. In 1913 a new law was enacted ‘to promote the general welfare * * * as affected by accident causing the injury or death of employees in the course of their employment, by creating a liability on the part of employers to compensate such employees * * * irrespective of the fault of either party * * * and creating a ‘state compensation insurance fund’ * * * providing for its administration * * * requiring safety in all employments and places of employment * * * and creating an industrial accident commission * * *.' Statutes 1913, p. 279. That statute is commonly referred to as the ‘Workmen's Compensation Act.’ The evident purpose of the law was to create a method of insuring the wage earner and his family by a system of industrial insurance, and to establish a commission for determining the amount due and a means for enforcing its judgments. In 1915 and in 1917 the Act of 1913 was amended (Stats.1915, p. 1079; Stats. 1917, p. 832) in several particulars, and as amended it and the Roseberry Act defined all relationships of master and servant and governed all controversies arising out of claims for compensation due for injuries to employees ‘under any appointment or contract of hire * * *.’ Sec. 14 of Act of 1913; Sec. 6 of Act of 1917. The labor laws of California were thus delimited until the adoption of the Labor Code in 1937, St.1937, p. 185 et seq.

For the purposes of this discussion the Labor Code may be divided into two parts. Part one, comprising Divisions I, II, and III and embracing sections 1 to 3091 inclusive, includes the provisions of the Roseberry Act, defines the respective rights and duties of labor and industry, establishes the Industrial Accident Commission and prescribes rules for the government of immigrants, employment agencies, sanitation, etc. Divisions IV and V embrace the major portion of the Workmen's Compensation and Insurance Act,' and include sections 3201 to 7601 inclusive. They have special reference to the compensation of the industrial classes under contract for hire, Labor Code, § 3351, for death or injuries suffered in the course of employment, insurance for their protection, methods of computing the amount of the liability of the employer or his insurance carrier, proceedings before the commission, safety, etc.

Respondent's action was not founded upon the theory that she was an industrial employee and as such entitled to compensation. On the contrary she proceeded on the hypothesis that she was a gratuitous employee and therefore obliged to seek her remedy against appellant according to the common law. That she was an employee is clearly established by the Labor Code. Section 350 defines employee to mean ‘every person * * * rendering actual service in any business for an employer, whether gratuitously or for wages * * *.’ Section 3000 defines a servant as one ‘employed to render personal service to his employer * * * and who in such service remains entirely under the control and direction of the * * * master.’ Section 2750 declares that a person is employed when he is engaged by another ‘to do something for the benefit of the employer or a third person.’ Such legislative declarations reflect the pronouncements of courts and text writers. One volunteering service without an agreement for or expectation of reward may be a servant of the one accepting such services (Restatement of Agency, Sec. 225), and one may be a servant without having promised to give his service. 39 C.J. 36. The relationship of master and servant may exist although the servant neither expects nor deserves compensation. Tucker v. Cooper, 172 Cal. 663, 158 P. 181. In order to constitute a person an employer it is not necessary that he actually exercise the right of control. 172 Cal. 668, 158 P. 181. The real test by which to determine whether a person is acting as the servant of another is to ascertain whether at the time of his injury he was subject to the orders and control of his employer, whether the employer had the right of control, and whether he might discharge the employee for disobedience or misconduct. Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820; Hillen v. Industrial Accident Commission, 199 Cal. 577, 581, 250 P. 570; Fearn v. Ralph Hamlin, Inc., 215 Cal. 211, 214, 8 P.2d 1015; Berkowitz v. Pelton, 9 Cal.App.2d 80, 81, 48 P.2d 756.

That a contract of employment existed between respondent and appellant is established also by section 1550, Civil Code. Both parties were capable of contracting. Respondent consented to perform a service required by appellant's business. The corporation accepted her service performed under the eye of its manager. The entertainment of the service men was a lawful object of the contract. Civil Code, 1607. It was supported by a sufficient consideration. Civil Code, 1605. Respondent's time, energies and talents inentertaining the service men were conferred upon defendant to its benefit and were a good consideration for the implied promises of appellant to exercise reasonable care in protecting her from injury. Civil Code, 1606.

The trial judge could hardly have found that respondent was not subject to appellant's orders. Surely, she would have been properly discharged upon her refusal to comply with the rules of the canteen. It is equally clear that if respondent had sought industrial compensation through the commission she would have been required to prove that she was serving under an ‘appointment or contract of hire * * *.’ Labor Code, 3351. Having no ‘contract of hire’ her cause must rest upon the fact of her rendering actual service gratuitously for her employer. Sec. 350.

But such gratuitous service does not deprive the employee of her right to be indemnified for her losses caused by her employer's want of ordinary care, Sec. 2800, and in an action by an employee for damages for a personal injury suffered ‘while engaged in the line of his duty or the course of his employment * * * contributory negligence shall not bar a recovery’ where such negligence is slight and that of the employer is gross, but ‘it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any law enacted for the safety of employees contributed to such employee's injury.’ Sec. 2801. It is no defense that the employee assumed the risk of the hazard complained of or that his injury was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant. Id. While the court found that respondent was not negligent immediately before the happening of the accident, appellant contends to the contrary and insists that she assumed the risks attendant upon her employment. The last cited sections definitely dispose of such contention. In addition to the employee's exemption from the defenses named in section 2801, his safety is further secured by section 6400 which requires the employer to furnish safe employment, while by section 6404 no employer shall ‘maintain any place of employment that is not safe.’

Appellant contends that the quoted sections are not applicable because the services of respondent were gratuitously performed. In support of that contention it cites Gabel v. Industrial Accident Commission, 83 Cal.App. 122, 256 P. 564; Los Angeles County v. Industrial Accident Commission, 123 Cal.App. 12, 11 P.2d 434; Campbell on Workmen's Compensation Insurance; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 814, 159 P. 721; Flickenger v. Industrial Accident Commission, 181 Cal. 425, 184 P. 851, 19 A.L.R. 1150. These authorities do not support appellant. In the first cited case Gabel was held liable by the Commission for industrial injuries suffered by his neighbor who was burned while assisting Gabel to fight a fire and who customarily exchanged services with him. In the case of County of Los Angeles, the heirs of a deputy marshal were awarded compensation for his death because he was killed while engaged in apprehending a person engaged in a felonious assault, although the act occurred after the usual work hours of the decedent. In the Flickenger and Pillsbury cases the award against the defendant in each instance was annulled because the only evidence bearing upon the relationship of the applicant and the defendant for compensation showed that the applicant was an independent contractor. The quotation from Mr. Campbell's work is the declaration of a broad principle applicable to cases where industrial compensation is sought. The cases cited by appellant originated with the Industrial Accident Commission in proceedings to recover industrial compensation under Division IV of the Labor Code where the employee was under contract of hire. Sec. 3351.

That Miss Edwards was duly appointed to her position by the agent of appellant is not denied. That her services were accepted and that she was dealt with as an employee is amply established. She had a fixed time to appear, designated hours to work, a definite shift on which to serve and a specified hour for her departure. She registered on the rolls prescribed by appellant and conducted herself in the manner defined by the management. Her work was a part of the very business of the defendant in maintaining ‘a place of recreation for the men in the armed services' as provided by its articles of incorporation, which business was also ‘to direct, assign, and regulate the activities' of persons retained to assist in the recreation of soldiers, sailors and marines. In view of the foregoing the conclusion is inescapable that respondent was an employee of appellant and that the proximate cause of her injuries was the negligence of appellant in permitting a boisterous person to be and remain in the canteen and to dance with respondent.

There is no merit in appellant's contention that respondent was negligent in not fleeing from the jitterbugging marine promptly on discovering his zeal for boisterous behavior. Her conduct evidently impressed the trial judge as that of a reasonably cautious young woman who while ready to resent an affront held in high regard the reputation of the house and the happiness of men in the armed service. The canteen was widely acclaimed and enjoyed extensive publicity. It was favorably known to all men of the fighting forces encamped in Southern California. Much effort was exerted to add glamour and attraction to the place. On the very evening of respondent's tragedy the music was provided by an orchestra leader of international fame. Rash indeed would it have appeared to the management as well as to the soldier guests had respondent in time of war suddenly withdrawn from the revelry of a scene in which the prevalent colors were those of the uniforms of service men and the predominant tones were the melodies of patriotic airs. As a reasonably prudent young woman, with due regard for the welfare of her master and for its reputation for hospitality, she was naturally restrained from abrupt action by a consideration of the proprieties.

The Superior Court had Jurisdiction

Appellant contends that if respondent was a servant of appellant then her remedy of necessity must be pursued before the Industrial Accident Commission and not by action in the superior court. The fallacy of this contention will instantly appear upon a consideration of the nature of the relationship between respondent and plaintiff. The Roseberry Act and all subsequent statutes included in the Labor Code were designed to provide a complete system of workmen's compensation and an effective remedy for the servant as against the master in the case of the latter's negligence occurring during the course of the employment. But these statutes regulate the industial life of the state with reference to losses sustained by workers due to death or injuries suffered in the course of employment. They require that industry maintain a sound economy in the preservation of its manpower. A primary purpose of the Roseberry Act, The Workmen's Compensation Act and their kindred supplemental provisions in the Labor Code was to effect an immediate arbitration without the ‘law's delays' of claims of workmen arising in industry. But recovery of compensation by an injured employee in industry must be based upon the rate of pay he received ‘under * * * contract of hire.’ Statutes 1913, p. 284; Labor Code, § 3351. There has been no modification of the word employee as there defined. Consequently, he is entitled to the benefits of ‘Workmen's Compensation and Insurance Act.’ Division IV. Labor Code, secs. 3202, 3601, 3706; Constitution, Art. XX, secs. 17 1/212 and 21. In the industrial field wages or salary are the criteria of compensation to be awarded to injured employees by the Industrial Accident Commission. Western Indemnity Co. v. Pillsbury et al., 172 Cal. 807, 159 P. 721. Unless, therefore, a person is employed at a wage under a contract for hire there is no basis for computing his compensation in event of his injury in the course of his employment. Respondent not having been so employed, she had no standing before the Industrial Accident Commission.

It follows, in view of the ancient rights of the servant to recover for the negligence of his master under the common law, that a servant working gratuitously must seek his remedy by judicial process. Smith v. Adler's Millinery, 122 N.J.L. 236, 4 A.2d 782; Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661; Hollowell v. North Carolina Department of Conservation and Development, 206 N.C. 206, 173 S.E. 603; Kirk v. Department of Labor and Industries, 192 Wash. 671, 74 P.2d 227; Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga.App. 156, 128 S.E. 777.

While paying is not necessary to render one a master, yet paying is necessary to bring an employee within the workmen's compensation act. Georgia Ry. & Power Co. v. Middlebrooks, supra. Such employee is one who works for wages and the right to demand pay for his service is essential to his right to receive compensation under the workman's compensation act in event of injuries sustained by accident in the course of his employment. Hollowell v. North Carolina, Department of Conservation and Development, supra. While there can be a contract of service without stipulating wages, there can be no employee under the workman's compensation act unless wages are made the criteria of compensation paid to the injured employee Coviello v. Industrial Accident Commission, supra.

Inasmuch as respondent was an employee not acting under a contract for hire, she was entitled to seek recovery of her losses only in a court of law. While she is excluded from the benefits of Divisions IV and V of the Labor Code so far as having her claim adjudicated by the Industrial Accident Commission, at the same time there is no language of the Labor Code that releases her master from the obligation to provide her a safe place to work. Labor, Code, 6400. Because an injured employee is not under a contract for hire he does not for that reason forfeit his common law rights to compensation for injuries received in the course of his employment by reason of the negligence of his employer. Neither is he denied the benefits of those provisions which declare that an employee's recovery against his employer for injuries suffered in the course of employment shall not be barred by reason of contributory negligence, ‘where his contributory negligence was slight and that of the employer was gross, in comparison.’ Labor Code, § 2801. Also, he has the right to assume that his employer has exercised the amount of care demanded by the circumstances in providing a safe place to work. Metz v. Southern Pacific Co., 51 Cal.App.2d 260, 270, 124 P.2d 670; Crabtree v. Western Pacific R. Co., 33 Cal.App.2d 35, 43, 90 P.2d 835; Devaney v. Atchison, T. & S. F. R. Co., 219 Cal. 487, 497, 27 P.2d 635. While these cases arose under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., they are authority here by reason of the similarity of the language of that statute to section 2801 of the Labor Code. The amount or degree of respondent's negligence, if any, was a question of fact for the trial court, and its findings upon conflicting evidence will not be disturbed. Bellman v. San Francisco H. S. District, 11 Cal.2d 576, 581, 81 P.2d 894; In re Estate of Winzeler, 42 Cal.App.2d 246, 108 P.2d 720. Having found respondent free from negligence immediately prior to her accident, we are obliged to assume that in assessing the damages the trial court considered the provisions of section 2801 and was guided thereby. Metz v. Southern Pacific Co., supra, 51 Cal.App.2d at page 270, 124 P.2d 670.

No Error and Fixing the Damages

No error appears in the court's evaluation of the damages suffered. For a dislocated coccyx, a wrenched vertebra, severe shock and great pain and suffering the finding justifies the award of $5,000 where the victim is a young woman whose earning capacity was by reason of the negligence impaired. The amount of special damage was fixed by the evidence.

The motion to have the court make findings favorable to respondent on all issues is denied.

The judgment is affirmed.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concur.