CALIFORNIA CASUALTY INDEMNITY EXCHANGE v. INDUSTRIAL ACCIDENT COMMISSION (1935)

The petitioner has applied for a writ of review to have annulled an award made in favor of the surviving widow and child of Charles Monahan, who was asphyxiated. The admitted facts are that Charles Monahan was employed as a salesman by Pacific Casket Company; that as such salesman he traveled about the state in an automobile furnished by his employer, calling upon the customers and selling the goods of his employer; that for his services he received from his employer a commission of 10 per cent. of the gross amount of the sales he made, and that the employer contributed $5 per day toward defraying the decedent's traveling expenses, that is, the cost of meals, hotel accommodations, and transportation. The decedent had been on a trip north as far as Crescent City and on his return, January 26, 1934, at about 9 o'clock p. m., he arrived in said automobile at an auto camp conducted by one R. F. Unzelman at Santa Rosa, Cal. He obtained accommodations for the night. The next day at about 3 o'clock in the afternoon the proprietor, together with representatives from the sheriff's office, entered the cabin and found Monahan dead. On investigation it was found that all of the doors were closed and locked and all of the windows were closed. A gas heater was burning “full tilt.” The autopsy disclosed that death had been caused by asphyxiation.

When the decedent arrived at Unzelman's, he went to the door of the house occupied by the proprietor. Mr. Unzelman came to the door, but as he was ill he merely delivered a key to Mr. Monahan and the latter said he would unlock the cabin assigned to him. The record is silent on the subject, but we may assume the gas heater was not burning because the cabin was not occupied at the time Mr. Monahan engaged it. The record shows affirmatively that although the door was locked the windows were open for the purpose of ventilating the cabin. It therefore appears that after Mr. Monahan entered the cabin he lighted the gas heater, locked the screen door and also the main door behind him, and he closed and locked the windows, and thereafter retired. In the room a small bottle was found. There was evidence it did not contain intoxicating liquor, but no evidence as to what it did contain. At the time he applied for lodgings, Mr. Unzelman stated to him that he was suffering from a cold and did not want to go out in the weather. Mr. Monahan replied that he was also suffering from a cold and stated to Mr. Unzelman that he knew of a remedy which he intended to purchase on arriving in San Francisco. The record discloses that after Mr. Monahan entered the cabin he became nauseated and vomited on the floor.

The respondent commission made findings in favor of the claimant and against the petitioner on all issues.

The right to recover under the Workmen's Compensation, Insurance and Safety Act (2 Deering's Gen. Laws 1931, Act 4749, p. 2276) depends on showing “* * * any injury sustained * * * arising out of and in the course of the employment. * * *” Section 6(a). The burden rests on the applicant to prove a case within the statute. Enterprise Foundry Co. v. Industrial Acc. Comm., 206 Cal. 562, 275 P. 432. “As a rule commercial travelers may be regarded as acting in the course of their employment so long as they are traveling in their employer's business including the whole period of time between their starting from and returning to their place of business or home.” Bradbury on Workmen's Compensation, p. 105. But it is settled law that the statute is not an insurance act of workmen in general. Associated Oil Co. v. Industrial Acc. Comm., 191 Cal. 557, 217 P. 744. It makes no exception as to traveling agents in that regard. It is therefore necessary to ascertain what injuries come within the scope of the statute. To do so it becomes necessary to ascertain the scope of the contract of employment. State Comp. Ins. Fund v. Indus. Acc. Comm., 194 Cal. 28, 227 P. 168. Having done so, some questions arise as to whether the facts of the injury bring the case within the scope of the contract so ascertained and determined. Whether the employee is one employed to work at a fixed place or is a traveling agent it is settled law that: “There must be a causal connection between the employment and the injury which had its origin in a risk connected with the employment, and flowed from that source as a rational and natural consequence.” Larson v. Industrial Acc. Comm., 193 Cal. 406, 409, 224 P. 744, 745. If, in the instant case, that rule is not easily applied, there is a well-defined rule to guide the way. Long before workmen's compensation acts were enacted in this country they had been enacted in England. Such statutes had been construed in many cases. Questions quite similar to the one presented to us had on several occasions been presented to the courts of England. (Judicial Interpretations of Workmen's Compensation Law–Chartres.) Of all of the numerous cases mentioned by the author Moore v. Manchester Liner, Ltd., III B. W. C. C. 527, is probably the leading case in both England and America. The decision was rendered by the House of Lords. The facts in brief were as follows: James Moore was a seaman on board of a British vessel which put in to the American harbor, South Brooklyn. While the ship lay at anchor he obtained permission to go on shore to purchase certain necessaries. Later he returned to the ship and attempted to board it by climbing a ladder which was the only method provided. In doing so he fell into the water and was drowned. Lord Loreburn, delivering the opinion in the House of Lords, stated as follows:

“When we speak of a workman being employed it means that he is engaged to do certain things at certain times and in certain places. If the question is whether an accident befell him ‘in the course’ of that employment, the first inquiry is, was he doing any of the things which he might reasonably do while so employed? A seaman going ashore without leave is not doing what he might reasonably do. He simply quits his employment for a time. Otherwise if he goes ashore with leave, for the employment is continuous, and implies leisure as well as labour. The next inquiry is, Did the accident occur within the time covered by the employment? A man engaged for so many hours a day is in the employment only during those hours. If engaged for a month continuously day and night, he is in the employment during the whole month, except, of course, during any time he quits the employment. The last inquiry is, Did the accident occur at a place where he may reasonably be while in the employment? In some classes of work, especially where the engagement is intermittent, for so many hours a day, the place is the actual scene of his labour, a railway or quarry or factory. In other classes of work, where the engagement is continuous for day and night over a period of time, the place is wherever he may reasonably be during that time.

“And so, to sum it up, I think an accident befalls a man ‘in the course of’ his employment, if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.

“It may seem at first sight that this is a formidable interpretation. It is not so in reality, because in every case the accident, to be a ground for compensation, must also be one arising out of the employment; and it is not often that such risks are run, except at the place where the man's work is to be done. A seaman, for example, who is ashore on leave and is knocked down by a waggon, is not injured by an accident arising out of his employment. But if he is sent ashore on ship's business, he is during that errand in the same position as a messenger, and is protected against the same risks.”

The opinion as so expressed by Lord Loreburn has been cited and followed in many decisions. For the purpose of this opinion, it is sufficient to cite Walker v. Speeder Machinery Corp., 213 Iowa, 1134, 240 N. W. 725, and the numerous cases cited or discussed by the Supreme Court of Iowa in its opinion. The same rule of law has been applied in this state. Brusster v. Industrial Acc. Comm., 35 Cal. App. 81, 169 P. 258. If not directly in line, there are many expressions in the decisions of the Supreme Court of this state that are closely in harmony with the rule just stated. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 685, 686, 158 P. 212, L. R. A. 1916F, 1164; Ward v. Industrial Acc. Comm., 175 Cal. 42, 44, 164 P. 1123, L. R. A. 1918A, 233; Bethlehem Corp. v. Industrial Acc. Comm., 181 Cal. 500, 505, 185 P. 179, 7 A. L. R. 1180; State Comp. Ins. Fund v. Industrial Acc. Comm., 194 Cal. 28, 33, 227 P. 168; Hartford A. & I. Co. v. Industrial Acc. Comm., 202 Cal. 688, 691, 262 P. 309, 58 A. L. R. 1392; San Bernardino County v. Industrial Acc. Comm., 217 Cal. 618, 625, 20 P.(2d) 673.

To any rational mind it is patent that by doing what he did it became inevitable that within the space of a short time after Mr. Monahan had closed and sealed the cabin, as above stated, he would be rendered seriously sick or perchance that he would be smothered to death. Conceding that under his contract of employment he had the right to lodge himself at such place and in such manner as he chose, he was not authorized to do so in such an unreasonable manner as stated above. Enfield v. Certain-Teed Products Co., 211 Iowa, 1004, 233 N. W. 141, 147. Under his contract he was employed as a traveling salesman, and, as such, he was authorized to do such things as he might reasonably do; but the injury he suffered by heating, closing, and sealing the cabin, in the manner hereinabove set forth, was not one arising out of his employment. It was one arising outside thereof. In other words, the decedent was not employed to do, nor was it within the contemplation of the parties that he should do, the acts which he did in the manner in which they were done. Christensen v. Hauff Bros., 193 Iowa, 1084, 188 N. W. 851. The case last cited is very closely in point. The firm of Hauff Bros. was engaged in the farm machinery and hardware business in several different towns in the state of Iowa. Christensen was employed by the firm as manager of one of the places of business. Under the direction of the firm he went to the principal place of business at Hinton. After transacting his business at that place one of the members of the firm delivered to him a railroad ticket, and he started to return. The train on which he was to take passage was a freight train. He did not attempt to board it until it was in motion. At that time he ran alongside of a flat car and attempted to place his hands on the floor of the car, spring up, and take a seat thereon. In making that attempt he fell, and from the injuries sustained he died in a short time. In 188 N. W. on page 854 the supreme court of Iowa said: “We do not think that Christensen, in his attempt to throw himself upon the flat car, without any standards or projections to take hold of, was doing a thing occasioned by the nature of his employment; and therefore such act and consequent injury could not be said to arise from out of his employment. There was no justification for Christensen's attempt to board the freight train by mounting the flat car in a most unusual manner and for reasons wholly unjustifiable. In attempting to jump onto the flat car he was not at a place where he might reasonably be, doing what a man so employed might reasonably do. We cannot conceive that Christensen's employment contemplated or comprehended any such unusual and rash act. If Henry Christensen, in attempting to board the flat car, was performing an act reasonably required by his employment, his injury and consequent death might be said to have causal connection with his employment, and therefore arise out of his employment. In other words, if upon consideration of all the circumstances there existed causal connection between the conditions under which Christensen's work was required to be performed and the resulting injury, it could then be said that he was, at the instant of the injury, within the scope of his employment. If the conclusion may be logically reached that the workman's injury followed as a natural incident of his work and was reasonably contemplated in his employment, then it may be said to have arisen out of the employment. But we think such conclusion not reasonably possible.” (All italics ours.)

It follows that the award under attack should be, and it is hereby, annulled.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE. J.