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

Berenice Marie WISEMAN, and Lynne Wiseman, a minor, by her guardian ad litem and trustee, Berenice Marie Wiseman, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION OF The State of CALIFORNIA, Crocker First National Bank of San Francisco and Hartford Accident and Indemnity Company, Respondents.*

No. 16672.

Decided: December 14, 1955

Henry G. Sanford, John R. Smith, San Francisco, for petitioner. Everett A. Corten, Daniel C. Murphy, San Francisco, for respondent, Industrial Accident Comm. Leonard, Hanna & Brophy, San Francisco, for respondents, Crocker First Nat. Bank and Hartford Acc. & Indemnity Co.

The widow and the minor child of a deceased employee seek the reversal of a decision of the Industrial Accident Commission which denied their claims for death benefits as dependents of the decedent. The decision was based upon a finding that the employee's death was not caused by an injury which arose out of and occurred in the course of his employment.

The referee who conducted the hearing filed a report in which he summarized the facts as follows: ‘A married California employee [a San Francisco bank official], traveling in New York on business for his employer, sustained death from burn injuries in a hotel room supplied by his employer. At the time, there was registered in his room as his wife, and also killed, a woman who was not his wife. There was evidence of drinking. The fire was probably caused by careless smoking of either one or both of the occupants of the rooms. The evidence is insufficient to establish which.'1

Upon the referee's recommendation, an award was made in favor of the dependents. This, upon reconsideration, was vacated and the decision under review rendered. The dependents thereupon petitioned for reconsideration.

The panel of the commission which denied that petition filed a report in which it made certain findings, including these: Applicants' evidence established that the employee was stopping at a hotel while on a business trip for his employer and perished in a fire during the night while occupying a hotel room. Defendants' evidence established that the fire originated in the bedding; that it was caused by careless smoking; and during the time the employee occupied the room that night he shared it with a companion ‘under circumstances beyond the pale of any reasonable use incident to his occupancy of the room contemplated by the reasonable necessities of his employment, however liberally viewed.’ There was no evidence tending to show which of these two persons caused the fire.

The panel reasoned: (1) Applicants' evidence established a prima facie case. (2) Defendants' evidence showed circumstances that neutralized the prima facie case. (3) There is here no presumption that the injury was proximately caused by the employment; i. e., the fact that the employee was injured in the course of his employment does not, under the circumstances of this case, give rise to such a presumption. (4) It follows that industrial causation could only be established if it were proved that the employee caused the fire. (5) The evidence does not furnish a basis for an inference that he did cause the fire. (6) The burden of proving that the injury was ‘proximately caused by the employment’ Lab.Code, § 3600, subd. (c), which the law cast upon the applicants, was not met. In conclusion, the panel said: ‘The distinguishing element in the instant case is to be found in the question of controlling importance, to wit, whether the injury arose out of and was proximately caused by the employment. A resolution of that question could only be made in favor of applicants, provided they satisfactorily proved that the employee was responsible for the fire. This they have not done. Lacking any evidence on this point, in the absence of any evidence from which an inference relative thereto could be drawn, and lacking any presumptions in favor of the applicants there is no basis upon which the employee's death could be said to have arisen out of and to have been proximately caused by his employment, save by substituting speculation, supposition or conjecture for evidentiary proof of the material fact.’

The applicants (petitioners herein) claim that some of these findings are not supported by the evidence.

As to whether or not the employee and his companion had been drinking, a police report which was introduced in evidence without objection stated that there were several empty liquor bottles and glasses in various parts of the room and that the hotel clerk said he was on duty at the desk when the employee and his companion came in about 1:30 a. m. prior to this fire and that they both appeared to be under the influence of liquor. Upon the witness stand the hotel clerk said he did not see the employee come into the hotel and go to his room and had not seen the woman companion before her death. He did testify that on the second morning prior to this occasion, between three and four in the morning, the employee, in a confused state caused by drinking, was trying to get into a room not his own. This evidence would warrant an inference of drunkenness. We do not know whether the panel drew the inference or not. It may have done so.

As to evidence of the cause of the fire, applicants say: ‘There was no direct evidence as to what had caused the fire. The fire marshall's report indicated that the fire was probably caused by the smoking carelessness of the occupants. There was no evidence that either occupant ever smoked or had been smoking the night of the fire.’ There was evidence that the concentrated area of fire damage was where the bed had been. The fire completely destroyed it and the carpet directly beneath it. The drapes, the hangings, everything caught fire. The room was entirely damaged by fire. We think the evidence supports a finding that the fire was caused by the carelessness of one of the occupants of the room. Whether it took the form of careless smoking or some other form does not seem pivotally important. We would not undertake to substitute our appraisal of the evidence for that of the panel.

In respect to the finding that the employee was injured while sharing his room ‘under circumstances beyond the pale of any reasonable use incident to his occupancy of the room contemplated by the reasonable necessities of his employment,’ applicants have not questioned the sufficiency of the evidence to support an implied finding that the employee used the room for the purpose of adultery as defined by the New York Penal Law. They challenge the significance of that evidence and of such a finding upon the ground that adultery was a social function condoned by the employer. They invoke certain of the testimony of one of the employer's officers, its eastern representative.2 Applicants mistakenly claim this testimony shows that at the time of the injury the employee was engaged in making permissive use of the employer's premises as contemplated by the contract of employment. The questions asked of the witness did not explicitly embrace the specific recreational activity here involved, the use of the room for adulterous purposes. Permissively taking a friend to a ‘night club,’ a ‘night baseball game,’ or to a ‘purely personal social gathering’ and ‘indulging in alcohol’ and ‘performing social functions,’ falls considerably short of indicating that adultery in the room furnished by the employer was an approved recreational activity, contemplated by the contract of employment. At least, we can not as a matter of law declare it a contemplated recreational activity and overrule the appraisal made by the respondent commission, whose function it was to weigh the evidence and draw the inferences.

It appears that in making the questioned finding the commission applied the proper test. Liability under the Workmen's Compensation Act covers personal acts of the employee when ‘the employee at the time of injury was at work and either on the employer's premises [citations] or on a business errand off the premises [citation]. This principle of compensability is generally stated as follows: ‘Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, are incidental to the service rendered by such a servant, and an injury sustained in their performance arises out of and in the course of the employment. The rule is broad enough to include the majority of an employee's acts upon the employer's premises, such as eating lunch, getting a drink of water, smoking tobacco where not forbidden by the employer, attending to the wants of nature, changing to or from working clothes, and many others. Such acts, although not themselves representing a rendition of service, are reasonably incidental thereto, and are considered to be acts for the mutual benefit and convenience of the employer and employee.’ [Citations.] As acts reasonably to be expected, they are regarded as taking place in the course of the employment.' Fireman's Fund, etc., Co. v. Industrial Acc. Comm., 39 Cal.2d 529, 532–533, 247 P.2d 707, 709.

‘Our Workmen's Compensation Act has been broadly construed to embrace various activities which can, in a reasonable sense, be included within its coverage as incident to the employment. So it was said in Employers' Liability Assurance Corp. v. Industrial Acc. Comm., 37 Cal.App.2d 567, at pages 573–574, 99 P.2d 1089, at page 1092: ‘If the particular act is reasonably contemplated by the employment, injuries received while performing it arise out of the employment, and are compensable. In determining whether a particular act is reasonably contemplated by the employment, the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered. Any reasonable doubt as to whether the act is contemplated by the employment, in view of this state's policy of liberal construction in favor of the employee, should be resolved in favor of the employee.’' Liberty Mut. Ins. Co. v. Industrial Acc. Comm., 39 Cal.2d 512, 515, 247 P.2d 697, 698.

In respect to recreational activities, this test has been expressed in these words: ‘Concerning recreational activities, and as to when injuries sustained therein are compensable, this rule is laid down in 1 Larson's Workmen's Compensation Law, sec. 22, page 328: ‘Recreational * * * activities are within the course of employment when (a) They occur on the premises during a lunch or recreation period as a regular incident of the employment.’ The test, says the author, is whether or not the recreational activity ‘is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment. * * * The activity must be shown to have achieved some standing as a custom or practice either in the industry generally or in this particular place. Put negatively, this means that the course of employment does not embrace every spontaneous or unprecedented frolic that might be undertaken on the premises. There is a genuine distinction between a case in which employees have been playing handball against the wall of a garage at noon with more or less regularity, and a case in which a couple of employees find a ball and immediately start up a handball game in the shop where such a thing has never been heard of before.’' Winter v. Industrial Acc. Comm., 129 Cal.App.2d 174, 177, 276 P.2d 689, 691; hearing by Supreme Court denied.

This test applies to the personal acts of an employee while traveling upon the business of his employer: ‘As a general rule a commercial traveler is regarded as acting within the course of the employment during the entire period of his travel upon his employer's business. His acts in traveling, procuring food and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workmen's Compensation Act applies. See California Casualty Indemnity Exchange v. Industrial Acc. Comm., 5 Cal.2d 185, 53 P.2d 758; Pacific Employers Ins. Co. v. Industrial Acc. Comm., 19 Cal.2d 622, 122 P.2d 570, 141 A.L.R. 798. 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.’ Dalgleish v. Holt, 108 Cal.App.2d 561, 566, 237 P.2d 553, 556; hearing by Supreme Court denied.

In the light of these principles and the evidence in the record, the commission's finding that at the time of the injury the employee was not making a permissive use of the employer's premises contemplated by the contract of employment, must be sustained.

The finding that the fire was caused by the carelessness of one of the occupants but that it is impossible to determine which, likewise is supported by the evidence.

It seems necessarily to follow that the applicants have failed to prove that the injury was ‘proximately caused by the employment.’ § 3600(c), Lab.Code. It is true that injury by fire is not a definite risk to all who engage in the recreational activity here involved. That is not the significant factor. The significant factor is that the injury occurred while the decedent was making a nonpermissible use of the premises, one not contemplated by his contract; hence, an injury that did not arise out of, one that was not caused by his employment.

Logically the conclusion would seem irresistible that neither the injury nor the ensuing death would be compensable no matter which of the two occupants of the room caused the fire. Yet, the commission concedes, and the insurer seems to concede, that the employer would be liable if the fire were caused by the negligence of the employee, citing Whiting-Mead Commercial Co. v. Industrial Acc. Comm., 178 Cal. 505, 173 P. 1105, 5 A.L.R. 1518. Whether that be so or not, we need not decide Under either theory there is a lack of proof that the injury was proximately caused by the employment. ‘The burden of proof that the injury arose out of and in the course of the employment, and was proximately caused thereby is on the employee. Not every injury occurring during the employment is compensable. The employment must be the proximate cause of the injury.’ Liberty Mut. Ins. Co. v. Industrial Acc. Comm., 73 Cal.App.2d 555, 569, 166 P.2d 908, 911; hearing by the Supreme Court denied.

A word should be said concerning State Employees', etc., System v. Industrial Acc. Comm., 97 Cal.App.2d 380, 217 P.2d 992, upon which the applicants heavily rely. That was the case of a state game warden who had no regular or prescribed hours of duty and at times was required to go on night patrol and to station himself in isolated areas where infractions of the Fish and Game Code might occur. He was furnished an automobile which was so equipped that it might be converted into a bed and it was permissible for him while on night patrol to sleep in the car. While on such duty he suffered death from carbon monoxide poisoning. His body and that of a woman companion were found in the car, the interior of which had been converted into a bed. The ignition switch, the radio and heater of the car were all turned on and the gasoline tank was empty. The gas fumes apparently had infiltrated into the car from the running motor and had been inhaled while the deceased were lying on the bed. The Industrial Accident Commission made an award in favor of the employee's dependents. Upon reviewing various items of evidence, including the fact that death ‘was occasioned from carbon monoxide poisoning from the use of equipment furnished him by his employer’ 97 Cal.App.2d at page 384, 217 P.2d at page 994, the court concluded: ‘There being a choice between two inferences reasonably deducible from the evidence, we cannot say that the Commission acted without or in excess of its powers or that its findings of fact were unreasonable.’ 97 Cal.App.2d at page 384, 217 P.2d at page 995. The fact that the equipment furnished by the employer was an efficient cause of the injury significantly distinguishes it from our case. If in our case the fire had been caused by an electric wire or fixture and if the commission had found the injury compensable, then, we think, the two cases would be indistinguishable.

The applicants claim there was an intervening independent cause operative here, one attributable to the employer and the employment. They direct attention to the employee phoned the night clerk, reporting the fire and begging help. The clerk phoned the fire department and went to the room but was unable to open the door even though it was unlocked. It was not until the firemen arrived and battered the door down with an axe that an opening was effected. By that time the occupants were too far gone to be revived. The applicants say that but for a defective door, which stuck, the occupants probably would have been saved. The insurance carrier argues that if we will refresh the judicial recollection we will know that heat expands materials and infer that the heat from the fire caused the door to stick. We are not sure that we may draw such an inference. We do not know whether the door was made of wood or metal. If of wood the expansion would be slight, if any at all; if of metal, it might be considerable. If the fire generated enough heat it might cause distortion in the wall and warping of the frame in such fashion as to jam the door tight. Also, what about the axe one expects to find in a hotel corridor? Where was it? Why did not the hotel clerk use it?

Without more facts and possibly some expert testimony, the inquiry seems speculative in character. All we know is that prior to the fire the door must have worked (the employee and his companion returned to the room about three hours before he phoned for help) but after the fire was under way it would not open. We are not the fact-finders. This question should have been presented to the Industrial Accident Commission. It would appear that it was not and that applicants are now for the first time urging this point. Their brief when the case was before the referee and their petition to the commission for reconsideration did not indicate that they then had a theory that the failure of the door to open was a causative factor.

The award is affirmed.


1.  In New York, where these events occurred, adultery is defined as ‘the sexual intercourse of two persons, either of whom is married to a third person’, N.Y. Penal Law, McK.Consol.Laws, c. 40, § 100, and is punishable as a misdemeanor, by imprisonment or fine or both, N.Y. Penal Law, §§ 101 and 102.

2.  That testimony was as follows: ‘By Mr. Peterson [counsel for applicants]: Q. * * * was there any indication or would there be any indication for Mr. Wiseman to have told us the names of the people, or friends that he intended to be with or might be with over here in New York, under those circumstances when he was in between trips? He had that week—in other words, I mean to point out to you that he had a week end to Chicago somewhere before he got to his point in Indianapolis on Monday, or Tuesday, would it be any concern of yours or of the bank's as to whether Mr. Wiseman was with Mary Driscoll or Johnson, or whom he might be with; whether he went to a night club, night baseball game or what he did? A. He would have no reason to tell me. Q. In other words, you got off on similar trips for the bank yourself? A. That is right. Q. And you no doubt find yourself over a week end in some place where you can't get back home? A. Right. Q. Then it is up to you to entertain yourself? A. That is right. Q. Over that Saturday night or Sunday? A. That is right. Q. And you may go to church Sunday morning. You may go to a night club or show on Saturday night. You may go out with friends, men and women and you still consider that you are off on a banking business visit? * * * Q. You still think you were on banking business? A. That is correct, and there is a lot of important banking business transacted in night clubs. I am willing to add that—I would like to make an explanatory statement.’ (No explanatory statement was made.) Defendant's counsel then asked the following question: ‘Q. * * * Assume that a bank employee on or about Saturday night goes off on a purely personal social gathering with a personal friend who is not a customer and who indulges in alcohol and performs social functions would you still consider that he was furthering the bank's business in the bank's employ?’ The witness replied: ‘If he is on a business trip, as Mr. Wiseman was, I would say yes.’

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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