PACIFIC EMPLOYERS INS CO v. INDUSTRIAL ACCIDENT COMMISSION (1935)

The petitioner seeks a review of an award of compensation to the mother of Joseph Chavez, who died while employed as a watchman by the Western Wool Manufacturing Company.

The evidence relating to the conditions of the place of employment, the terms of employment, and the circumstances leading to the death of the deceased is all uncontradicted. Prior to the employment of deceased, the wool company engaged the American District Telegraph Company to install a fire and watchman's signal service in its plant, and such system was laid out with considerable detail on each of the three floors of the plant with specially designed signal boxes so arranged throughout the plant that the watchman would be required to follow a well-defined course from one box to the next in order. These boxes were of such a type that a specially designed key had to be carried by the watchman and inserted in each box in regular order, otherwise the signal could not be given. To this key was attached a registering device which noted each box punched and prepared the key for insertion in the box next in order. As an additional protection to the plan, this course was so laid out that the watchman would have to use the stairways (of which there were three) instead of the elevator, as this course would take him over the parts of the plant which the employer deemed needed inspection.

When Chavez was employed, he was taken over this course and at that time, and on numerous other occasions, was given definite instructions not to use the elevator. He was also told that the former watchman had been discharged for disobedience of this order. There was but one elevator in the plant and it was used exclusively for carrying freight. It carried a printed sign warning all employees that it should not be used except to carry freight. None of the employees used it in the daytime except for that purpose, and this use was impressed upon the watchman on more than one occasion.

The employees left the plant at 4:30 p. m. The manager and engineer remained until near 5 p. m. when the deceased appeared to assume his duties as watchman. All the witnesses testified that the elevator was at the second floor when the deceased was left alone in the plant on the day of the accident and that the safety gates on all three floors were closed. The deceased was found near the bottom of the elevator shaft in the basement. The elevator was then at the third floor and the safety gate on the first floor had been raised in such a manner that it was jammed and could be closed only with great force.

As to the duties of the watchman, there is no dispute. He was required to commence his rounds at 6 p. m. and to follow the same course once every hour. In case of fire, he was to use one of the fire signals on whatever floor he might be and without regard to the size or probable danger of the fire. He was given no instructions to fight a fire himself. At the time of his death Chavez had been working at the plant off and on for three or four years and had become thoroughly familiar with the physical conditions of the plant, with his duties as watchman, and with the rules applicable to such duties. When he was found in the basement, he was unable to talk and made no statement before he died.

The only reasonable inference that can be drawn from the undisputed facts is that he attempted to use the elevator and fell into the shaft. Circumstances leading directly to this inference are that the whole space about the elevator was clear as day; that the safety gate was made of slats painted white which stood out clearly against the dark background of the elevator shaft; that the deceased had turned in his signals from boxes numbered 1 and 2 (the latter was located on the first floor); and that the register which was attached to his key was set for box number 3, which was located on the third floor. His course called him to take the stairways from the first floor to the third in order to signal from this box. From this evidence, the inference is that he attempted to use the freight elevator to reach the third floor, in disobedience of explicit orders from his employer.

The only answer made by the respondents is that “the most reasonable inference to be drawn from the circumstances” is that, “as it was dark in front of the elevator shaft, decedent mistook said shaft for a door and fell down the shaft.” In support of this inference, it is then said that he might have smelled smoke and was looking for a fire, or that he might have heard an intruder. The chief weakness of this argument is that it is not supported by any evidence. The injury occurred May 15, 1934. The deceased started his rounds at 6 p. m., before sunset, when the space in front of the elevator was flooded with daylight. His schedule called him to punch the third signal before 6:15 p. m. When this signal failed to come in at the telegraph office, an inspector was sent to the plant to investigate. He arrived at 6:34 p. m. It was then still light inside the plant. Without the aid of any artificial light, he went over the watchman's route twice from the first floor to the third and then down to the basement. The only evidence of darkness in the plant came from those witnesses who arrived after 7 o'clock. There was no evidence of any indication of a fire or of an intruder. But, if there had been, the undisputed evidence is that it was deceased's duty to first give the alarm. No such alarm was given.

The case is controlled by the accepted rule that when an employee, for his own convenience, voluntarily places himself in a dangerous position contrary to the orders and instructions of his employer, the injury resulting is not compensable. San Francisco & S. Railway Co. v. Industrial Accident Commission, 201 Cal. 597, 600, 258 P. 86; Moyer v. Packard Motor Car Co., 205 Mich. 503, 171 N. W. 403; Borck v. Simon J. Murphy Co., 205 Mich. 472, 171 N. W. 470; Dulac v. Dumbarton Woolen Mills, 120 Me. 31, 112 A. 710; Hibberd v. Hughey, 110 Neb. 744, 194 N. W. 859; White City Amusement Co. v. Industrial Commission, 331 Ill. 541, 163 N. E. 337; Pacific Fruit Express Co. v. Industrial Commission, 32 Ariz. 299, 258 P. 253, 55 A. L. R. 975; Roebling's Sons Co. v. Industrial Accident Commission, 36 Cal. App. 10, 16, 171 P. 987. The same rule has been followed by respondents in other cases coming before the commission: Jones v. State Fund, 18 I. A. C. 91; Dove v. I. A. C., No. 37647, in which a petition for certiorari was denied by this court in case No. 9397, and by the Supreme Court in S. F. No. 14825.

Our courts have all followed the rule that, where direct evidence is wanting to prove a certain fact, inferences may be drawn from the facts proved to supply the evidence needed. But such an inference can be drawn only from the “facts proved.” Code Civ. Proc. § 1958. When an inference is contrary to the facts proved and based upon speculation and surmise, it is not such evidence as will support a conclusion. This is made clear in the opinion of the Supreme Court in denying a hearing in the Roebling Case, 36 Cal. App. at page 16, 171 P. 989. Here the inference that the deceased had not departed from the course of his employment at the time of his injury is contrary to all proved facts and to the only inference that can be “reasonably and fairly made from the testimony.”

The award is annulled.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.