PACIFIC EMPLOYERS INS CO v. INDUSTRIAL ACCIDENT COMMISSION ET AL (1944)

Petition for a writ of review. By this proceeding petitioner seeks to annul an order of the Commission allowing compensation benefits to Lillian Carmel. It is the contention of petitioner that although the injury suffered by the employee occurred during the course of her employment, it did not arise out of the employment, and was, therefore, not compensable.

The facts are not substantially in dispute and are as follows: Lillian Carmel was employed as a bus girl by Mark Hopkins, Incorporated, the operator of the Mark Hopkins Hotel. In the early morning hours of February 21, 1943, she was engaged in performing her duties in one of the dining rooms of that hotel helping to clean up the tables. Two of her fellow employees, both aged sixteen, who were working in the same room, began playing catch with some hard French rolls. One of the boys threw a roll which the other boy missed, and it hit Lillian Carmel in the eye, causing the injury for which the Commission allowed compensation.

There is no doubt that the rolls were thrown in fun. The case is simply one where an employee who has not participated in skylarking or horseplay between other employees, and who, in fact, did not even know that the skylarking or horseplay was going on, is injured as a result of such skylarking or horseplay. The question presented is whether injuries so incurred are compensable. The Commission has held that the injury arose out of and occurred in the course of the employment. It is this holding that is challenged in this proceeding.

So far as this intermediate appellate court is concerned, the question here presented is no longer an open one. The Supreme Court has consistently ruled that where an employee is injured as the result of his own skylarking or horseplay, or where he is injured as the result of the skylarking on horseplay of fellow employees, the injury does not arise out of the employment, and is not compensable. In Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A.1916F, 1164, an innocent employee was tickled by a fellow employee, and, as a result, fell and was injured. The Supreme Court held that there was no causal relation between the employment and the injury, that the injury did not arise out of the employment, and that such injury was not compensable.

The same rule was applied in Fishering v. Pillsbury, 172 Cal. 690, 158 P. 215, where one employee, in a spirit of fun, pointed a “trick” camera at a fellow employee, which camera ejected a spring which hit the fellow employee in the eye. It was held that the resulting injury was not compensable.

The rule of these two cases was reaffirmed in Great Western Power Co. v. Industrial Acc. Comm., 187 Cal. 295, 201 P. 931, where the problem is discussed at length. In this case the injured employee, in the performance of his duties, passed below a platform on which two of his fellow employees were engaged in a friendly wrestling match. The wrestlers fell on the employee, causing injury. The Supreme Court held that the two cases above cited were controlling, that the fact that the injured employee was not a participant in the horseplay was immaterial, and that the injury was not compensable.

All three of these cases were reaffirmed in Pacific Employers Insurance Co. v. Division of Industrial Accidents & Safety, 209 Cal. 656, 289 P. 619. In this case, an employee, while busily engaged in the performance of his duties, was injured by a fellow employee who was playing with a golf club. The injury was held not to be compensable. The Supreme Court specifically refused to repudiate the rule of the earlier cases.

In Dalsheim v. Industrial Acc. Comm., 215 Cal. 107, 8 P.2d 840, the employee who was injured, while skylarking, ignited a pail of gasoline. While attempting to remove the burning liquid to a place of safety, the employee was injured. It was held that, under the rule of the above cases, the injury was not compensable.

The Commission makes no serious contention that the rule of the above cases is not applicable to the instant case. It takes the position that, at least where the injured employee is not a participant in the skylarking or horseplay, the rule of the above cases is wrong and should be overruled. In support of its position it has filed an exhaustive brief containing many convincing arguments. These arguments and authorities would be most pertinent, were the question an open one. It is very difficult, if not impossible, to reconcile the rule of the skylarking and horseplay cases above cited with those cases which hold that injuries growing out of street hazards are compensable where the performance of the employee's duties require him to be upon the street (Pacific Emp. Ins. Co. v. Industrial Acc. Comm., 19 Cal.2d 622, at page 630, 122 P.2d 570, at page 574, 141 A.L.R. 798, and cases cited); with the rule abolishing the defense that the injury was caused by the negligence of a fellow servant; with the rule allowing compensation, reduced one–half, where the employee is guilty of wilful misconduct; and with the rule that injuries arising out of attempts to stop personal fights between fellow employees are compensable. United States Casualty Co. v. Hampton, Tex.Civ.App., 293 S.W. 260; Hartford Acc. & Ind. Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11; Kaiser Co. v. Industrial Acc. Comm., 65 Cal.App.2d 218, 150 P.2d 562. There are many well considered cases from other jurisdictions, perhaps constituting the weight of recent authority, holding that where an employee who has not himself participated in horseplay is injured as the result of the horseplay of others, such injuries are contemplated by the employment, arise out of and in the course of the employment, and are therefore compensable. Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522; Industrial Commission of Ohio v. Weigandt, 102 Ohio St. 1, 130 N.E. 38; International Harvester Co. v. Industrial Commission, 354 Ill. 151, 187 N.E. 916; Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Cassell v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137; Tabor v. Midland Flour Milling Co., Mo.App., 168 S.W.2d 458; Willis v. State Industrial Commission, 78 Okl. 216, 190 P. 92; Badger Furniture Co. v. Champeau, 195 Wis. 134, 217 N.W. 734; McKenzie v. Railway Express Agency, 205 Minn. 231, 285 N.W. 529; see annotations 13 A.L.R. 540; 36 A.L.R. 1469; 43 A.L.R. 492.

However convincing these arguments and cases might be were the question an open one, this court, as an intermediate appellate court of appeal, is bound by the prior decisions of the Supreme Court. There is no reasonable ground upon which the California cases, above cited, may be distinguished. In the orderly administration of justice, whether those cases should now be overruled is a question lying exclusively within the power of the Supreme Court.

The award is annulled.

I concur in the order annulling the award based upon the decisions in Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A.1916F, 1164; Fishering v. Pillsbury, 172 Cal. 690, 158 P. 215; Great Western Power Co. v. Industrial Acc. Comm., 187 Cal. 295, 201 P. 931; Pacific Employers Insurance Co. v. Division of Industrial Accidents and Safety, 209 Cal. 656, 289 P. 619; Dalsheim v. Industrial Acc. Comm., 215 Cal. 107, 8 P.2d 840, and in the statement of the main opinion that “there is no reasonable ground upon which the California cases, above cited, may be distinguished” from the present case. I disapprove of that portion of the opinon which, as it seems to me, is an invitation or suggestion to the Supreme Court to reverse the decision of this court.

The commission knows the rule to follow. However, it is that body's view that the commission is right and the courts are wrong. Instead of following the previous court decisions, and permitting the applicant to appeal, the commission has granted an award, thereby forcing the employer or its representative to appeal. This action permits the applicant and respondent commission to rest comfortably upon the findings and the rule that the determination of the commission on questions strictly of fact is final and not subject to judicial review. Labor Code, sec. 5953, St.1937, p. 305.

The commission does not contend that the rule of law enunciated in a series of cases in this state upholds its ruling, but that the “liberal construction” given in other cases warrants an award in this case. The commission notes that the Supreme Court of this state has determined that the “factor that the injury occurred on the employer's premises is an element in determining compensability,” citing Smith v. Industrial Acc. Comm., 18 Cal.2d 843, 118 P.2d 6, and argues that the admitted “Recklessness of the boy in the performance of that service was not ‘a definite departure from his employment.’ ”

The commission seeks to justify its action directing an award contrary to the established rule in this state, by contending that it is based upon facts similar to those of Torosian v. Industrial Acc. Comm., 11 Cal.App.2d 204, 53 P.2d 384. In that case, in which the employees were permitted to smoke, a match was accidentally dropped near a container of gasoline. In the present case the “bun” was not thrown intentionally at the injured employee but was intentionally thrown at another employee, an act which was expressly not permitted by the employer. In the Torosian case, 11 Cal.App.2d at page 206, 53 P.2d at page 384, the court said: “The dropped match which ignited the gasoline was lighted in the process of smoking, a permissible act which was not, in itself, a departure from the scope of employment.” In the present case it is obvious that the throwing of buns was not, by permission or otherwise, an act arising out of the employment.

The main opinion states: “There are many well considered cases from other jurisdictions, perhaps constituting the weight of recent authority” that where an employee not participating in horseplay is injured as the result of the horseplay of others, such injury arises out of and in the course of employment. (Italics added) In support of this theory, certain cases and certain annotations––13 A.L.R. 540; 36 A.L.R. 1469; 43 A.L.R. 492––are cited. It is not necessary to analyze each case; reference to A.L.R. should be sufficient. At page 540 of 13 A.L.R. the following appears: “It is generally held that no compensation is recoverable under the Workmen's Compensation Acts, for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the acts.” As an exception to the rule some cases, wherein the injured employee “took no part in the fooling,” are cited. In 36 A.L.R. 1464, where the foreman took part in playing practical jokes on an employee, the evidence showed that the foreman had authority to stop the horseplay. It was held that notice to him was notice to the employer, which was held liable. However, at page 1469 it is said: “The later decisions support the general holding found in the earlier annotation to have been made by the courts with respect to what injuries arise out of the employment; that is, that for injuries sustained through horseplay, or fooling, which was done independently of and disconnected from the performance of any duty of the employment, there can be no recovery under the workmen's compensation acts.” In 43 A.L.R. 492 we find: “The rule stated in the earlier annotations that no compensation is recoverable under the workmen's compensation acts for injury sustained through horseplay, or fooling, which was done independently of, and disconnected from, the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the acts, is supported by the latter decisions.”

In California no distinction is made between a participating and non–participating employee. 1 Campbell, Workmen's Compensation, p. 220. In Pacific Employers Insurance Co. v. Division of Industrial Accidents and Safety, 209 Cal. 656, 658, 289 P. 619, 620, the court said: “Logically, this case cannot be differentiated from the cases cited, and that is apparently well understood by the respondent commission, for its argument is, in effect, an attempt to secure a modification or reversal of the rule of these cases, which clearly would be required for an affirmance of this award. The commission made a similar effort in the case of Great Western [[[[[Power] Co. v. Industrial Acc. Comm. [supra], but this court refused to overrule the two previous cases of Coronado Beach Co. v. Pillsbury and Fishering v. Pillsbury, supra, but reaffirmed these cases upon reason and authority.” In all of such cases the test has been––was the risk incidental to the business of the employer?

It is true that of the many cases cited in text books a few appear to be based entirely upon sympathy for the injured; a few indicate a desire to hold the employer responsible irrespective of legal liability, and a few confirm an award upon the theory that the employer is covered by insurance. In my opinion such grounds are, to say the least, purely artificial. If it is desired that compensation be paid irrespective of whether the injury arises out of the employment, let the law be changed by legal and proper method, not by judicial or departmental decision.

In Federal Mut. Liability Insurance Co. v. Industrial Acc. Comm., 187 Cal. 284, 201 P. 920, the facts are similar to those of the present case. They are set forth at page 284 of 187 Cal., at page 920 of 201 P., as follows: “At the time of the injury Farsais was working for the packing company, engaged in sweeping the floor of a part of the premises where other employees were putting grapes into a machine as a part of their duty. While Farsais was at work an employee threw some grapes at another employee, and, his aim being bad, he missed the other person, and one of the grapes hit Farsais in the eye, thereby causing his injury.” At page 285 of 187 Cal., at page 920 of 201 P., the court said: “There was nothing in the nature of the employment in which any workmen present were engaged which required any of them to throw grapes at another. The act was either a playful or a malicious act of one employee toward another, having no connection whatever with the work in which he was engaged.” Any other conclusion would seem to be a judicial approval of skylarking and frolicking at work.

The commission here contends that horseplay will often occur, and that prior cases refusing compensation for injury arising therefrom should be overruled. In Federal Mut. Liability Insurance Co. v. Industrial Acc. Comm., supra, 187 Cal. at page 286, 201 P. at page 921, the court said:

“It is contended in its (the commission's) behalf that those cases should be overruled. The argument is that in every establishment where a number of workmen are required to be near to each other in the course of their employment for hours at a time ‘some frolicking is inevitable. It occurs in every plant. The industry, by bringing workmen together in numbers exposes its workmen to this hazard, which is just as much a hazard incident to the employment and “arising out of the employment” as the danger of slipping upon floors, colliding with other workmen, falling down stairs,’ and the like.

“Although this line of reasoning has support in the decisions of some of the other states, it is contrary to our own, and it seems to us to be an unwarranted extension of the meaning of the controlling language of the Constitution and of the statute defining the character of injuries that are to be compensated out of the earnings of the business in which they occur.”

Finally, it has been suggested by the attorney for the commission that the change in the personnel of California courts in recent years will likely result in such liberal construction of the term “arising out of the employment” as would uphold the award herein. Notwithstanding the generosity of the commission and the courts to employees in the way of liberally construing the facts under a law, humanitarian in character, imposing upon an employer, irrespective of fault, liability for compensation to an injured employee, no decision in this state may be found classing horseplay or pranks during working hours, forbidden by the employer, as a special hazard arising out of the employment. 27 Cal.Jur., p. 375, sec. 81. No decision may be found in this state holding that under the facts of the present case it may reasonably be held that there is “a causal connection between the conditions under which the work is required to be performed and the resulting injury” (28 R.C.L., p. 797, sec. 89), or that such injury could reasonably have been contemplated or arose as a rational consequence of the employment. Federal Mut. Liability Insurance Co. v. Industrial Acc. Comm., supra.

PETERS, Presiding Justice.

DOOLING, Justice pro tem., concurs.