PACIFIC INDEMNITY CO v. INDUSTRIAL ACCIDENT COMMISSION (1944)

By these proceedings petitioner seeks the review and annulment of awards made by the Industrial Accident Commission for the death of Tomas Vallez, age 12, and of his brother Adolfo Vallez, age 15, who both sustained death by drowning on the premises of the employer, while the two boys were purportedly on their way to the employer's office to get their pay for picking grapes. The evidence in the record upon review establishes that Tomas and Adolfo Vallez resided with their parents. These two boys, and other members of their family, were employed by petitioner's assured as grape pickers on a piece work basis. On Saturday, September 5, 1942, the two boys had picked grapes for their employer in the morning. It appears from the testimony in the record that all the grape pickers quit work that day at noon. At that time Tomas and Adolfo went home. About 12:30 or 1:00 in the afternoon of that day Tomas and Adolfo left their home with two other boys. There is evidence in the record that the boys were going to the office of their employer at that time in order to collect their wages. It also appears that the reason the boys went home after quitting work was to pick up certain cards recording the amount of grapes picked on previous days, for the purpose of getting their wages for such grape picking. One of the boys who accompanied Tomas and Adolfo testified at the hearing that the boys stopped at an irrigation reservoir on the employer's premises, in order to wash before going to the office for their pay. Tomas and Adolfo were drowned in this reservoir sometime between 12:30 and 3:00 PM of the day in question. The evidence shows that the boys were clothed when drowned; and there is no evidence to establish that they had gone swimming in the reservoir. There is testimony to the effect that the Vallez boys washed their feet in the reservoir, that the smaller of the two fell in the reservoir and that the larger boy went in after his brother. It appears that the Vallez boys had told their sister Margaret, at the time the boys left their home on the afternoon in question, that they were going to take a shower at ‘Maas Bros. Showers.’ They also told Margaret that they were going to get their pay; however, the boys did not state whether they were going to take a shower before or after they got their pay. Margaret testified that when she got her pay on Saturday she usually got her pay before noon or at noon ‘because the bookkeeper goes I think at one.’ There is testimony that grape pickers washed their faces and hands in the reservoir, and that people also went swimming there. But it is not established that the reservoir was maintained by the employer for that purpose. It appears from the record that there were facilities for washing at the Vallez home. The Vallez home was not upon the premises of the employer. In going from the Vallez house to the employer's office the boys would pass by the reservoir if they went by way of ‘the sand road.’ Upon the evidence presented at the hearing the commission found that the two Vallez boys sustained injury arising out of and occurring in the course of their employment, proximately resulting in their death on the same day.

It has been held that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. If the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. The danger must be peculiar to the particular place in which the employee was required to work. The accident does not have to be actually foreseen or expected. ‘It is sufficient that after the event it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.’ If the exposure of the employee to a particular danger differs substantially from the normal risk to which all are subject, ‘if the employment necessarily accentuates and increases the danger to a higher degree than that to which persons generally are subjected, then it may fairly be held that there was such special exposure to such danger as warrants a conclusion that the accident arose out of the employment.’ Kimbol v. Industrial Accident Commission, 173 Cal. 351, 354, 355, 160 P. 150, 151, L.R.A.1917B, 595, Ann.Cas.1917E, 312.

With regard to the reservoir and the use made thereof by grape pickers, the following appears in the transcript of the testimony taken at the hearing, the testimony being that of Margaret Vallez:

‘Q. Then would they get any particular amount of dirt on them in picking those grapes? A. A lot of dirt.

‘Q. What kind of dirt, sand? A. Sand and dust from the grapes.

‘Q. Just the sand, no soil and dust on the grapes? A. That's the sand in the box.

‘Q. But no mud or nothing like that? A. No.

‘Q. Now you have seen this reservoir, haven't you? A. Yes.

‘Q. When you say washing in there do you mean swimming or just washing? A. No, there was a little, like a little box, just a little piece of cement box, and there is where the water goes out of the reservoir, there is a pipe there and everybody kneels down and washes their hands and face and head whenever they want.

‘Q. That is right along the highway, isn't it? A. Close to the reservoir.

‘Q. You mean you drove along that road and the reservoir is right next to the road? A. Yes.

‘Q. And if you want to stop there and wash your hands or face it is just a matter of walking over there and doing it? A. Yes.

‘Q. They also use that for a swimming pool, don't they? A. Yes.

‘Q. People go in there and go swimming? A. Yes.

‘Q. And a diving board? A. Yes.

‘Q. When you say you have seen a number of people there at one time, do you mean they were in swimming? A. The truck stops there and picks the people there, all the people from the ranch that camp there, and some other men from places, came from our house, some came from Cucamonga, we all get together there and go in the truck.

‘Q. Sort of a meeting place? A. Yes, we meet there at 7 o'clock, we all get in the truck and then we start to work, we meet there every morning, then the truck leaves us there in the afternoon at 5 o'clock.

‘Q. The people that live in the houses at the camp wash there? A. They wash there.

‘Q. Their clothes? A. Not clothes, their hands and face they wash there.

‘Q. That is about the only water around there, isn't it? A. I don't think they have any.

‘Q. I mean for household use? A. Yes, they have drinking water.

‘Q. And no fence? A. No.

‘Q. Anybody that is driving along the road could stop and wash if they wanted to? A. Yes.’

Respondent Industrial Accident Commission argues that: ‘Aside from the direct testimony that the grape pickers became grimy and dirty during the employment, it is a matter of common knowledge that the continuous handling of grapes or other fruit in the field would result in the accumulation of stickiness and dust from the handling of the fresh fruit in the field. It also requires no affirmative testimony that an employer would not be welcoming into his office employees for the purpose of settling with them for their work, when they were soiled from their day's work. The employers here had furnished facilities for the employees to clean themselves at the site where the day's work began and ended, to-wit, at the camp adjacent to the reservoir. From the employer's standpoint he contemplated they would be used and from the employees' standpoint, they had the right to use these facilities as an incident of the employment.’

In the absence of affirmative testimony on the subject, it cannot be assumed that an employer of field workers would not welcome employees into the ranch office to receive their pay unless the employees had first washed. As already stated, the evidence does not establish that the reservoir was maintained by the employer to furnish the employees facilities for washing themselves; though it may be referred from the evidence that the employees were permitted to wash in the reservoir. It may also be inferred that the reservoir was likewise available for the same purpose to anyone who might be passing by.

The only testimony in the record as to the hours during which the employer's office was open on Saturday indicates that the office closed about 1:00 or 1:30 in the afternoon. The time when the drowning of the Vallez boys occurred is not established, except that Chano Silva, who was with the boys at the time of the accident, testified that they arrived at the reservoir about 12:40 PM. The constable, who heard a radio call regarding the drowning, while the constable was riding in the sheriff's car, testified as follows: ‘We received this call, I would say somewhere around between 2:30 and 3:00 o'clock in the afternoon, or possibly a little later than that, I don't know just exactly the time, and we were in the vicinity of Upland at that time and we went directly to the reservoir on Base Line; when we got there they had removed one body from the reservoir, which was the older boy I believe, and we contacted some men there and they were diving into the reservoir trying to find this other boy.’

Assuming, however, that when the boys stopped to wash at the reservoir, they were on the way to the office of their employer, to receive their pay, there is still a question whether the use of the reservoir by the boys, under the circumstances presented, constituted an incident of their employment. ‘It is, of course, a fundamental doctrine that it was not intended by the compensation act that an employer who comes within its provisions shall be the insurer of his employee at all times during the period of the employment, but is liable for compensation only when the injury occurs to the employee while performing some act for the employer in the course of his employment, or is doing something that is incidental thereto. There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. 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. California Casualty Indemnity Exch. v. Industrial Acc. Comm. [190 Cal. 433], 213 P. 257. But whether a given accident is so related or incident to the business in which the employee is engaged must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case. Cudahy Packing Co. v. Parramore [263 U.S. 418], 44 S.Ct. 153, 68 L.Ed. [366, 30 A.L.R. 532]; [General Accident, Fire & Life] Assurance Corp. v. Industrial Acc. Comm., 186 Cal. 653, 656, 200 P. 419.’ Larson v. Industrial Acc. Comm., 193 Cal. 406, 224 P. 744, 745. In this connection, it is important to note that, according to the testimony of Margaret Vallez, the employees washed their faces, hands and heads at the outlet of the reservoir, where there was a ‘cement box’ and a pipe; but at the time of the drowning, the boys appear to have been washing their feet in the reservoir itself, or to have been wading along the edge. Therefore, even if it be assumed, though it is not here decided, that washing at the reservoir outlet was an incident of the employment, there is still a question whether the use the Vallez boys were making of the reservoir at the time of the fatal accident was incidental to their employment.

The opinion in State Comp. Ins. Fund v. Industrial Acc. Comm., 194 Cal. 28, 227 P. 168, cites and quotes from Hackley, etc., Co. v. Industrial Acc. Comm., 165 Wis. 586, 162 N.W. 921, 922, L.R.A.1918A, 277, which latter case takes the view that an employee going in the usual manner for his pay to a place designated by the employer is performing a service within his employment, and cites cases sustaining this view, one of which is Lowery v. Sheffield Coal Co., 1 B.W.C.C. 1, wherein a collier, on his way to collect his wages, was walking along a footpath provided by his employer for its employees; and while on that path the collier was knocked down by a locomotive at a point where the path ran along a railway line which passed through the employer's premises. The collier was held entitled to compensation for his injury. In the Hackley case, above referred to, an employee was injured while riding on a train which it was necessary for the employee to take in order to get to the employer's office to collect his pay. In that case the court stated: ‘The duty to pay and the right to receive the compensation were integral parts of the contract of employment. * * * So in going to get his pay he was but fulfilling a duty imposed upon him by the employer and using the means of conveyance which the employer furnished his employés for such purpose.’ In State Comp. Ins. Fund v. Industrial Acc. Comm., supra, a hotel maid was injured while leaving the hotel premises on her day off. The elements of her employment contract provided that she live upon the hotel premises. The maid in that case was held entitled to compensation, the court stating (194 Cal. at page 35, 227 P. at page 170): ‘It would seem, upon principle, that her legal situation was precisely the same as if upon a day when she was not actually working for her employer—when she had a ‘day off,’ or for some other reason was not working—she had gone to his premises by the entrance designated by the employer to collect the portion of her wages to be paid in cash, and had been injured in the same place and manner as she was injured.'

In these last cases, above referred to, there is a direct connection between the injury and an act which was necessary for the employee to perform in order to carry out or fulfill some condition or circumstance of his employment. The collier had to go by the path provided in order to get his pay. His presence upon this path at the time directly resulted in his being knocked down by the locomotive. The employee in the Hackley case was injured while travelling along a route and in a conveyance it was necessary for him to take in order to get his pay. The maid, of necessity, must have left the hotel premises by the entrance or passageway provided, and was injured as a direct result of leaving in that manner. But in the case here presented, the injury did not arise as a direct result of the employees going to the office to receive their pay. There was an intervening cause, namely, stopping to wash at the reservoir. If any rule may be invoked to uphold the award here in question it is that rule which allows compensation for injuries sustained in the performance of acts necessary to the comfort, convenience and welfare of the employee while in the discharge of his work. But such acts must bear a reasonable relation to the employment. See: Western Pac. R. Co. v. Industrial Acc. Comm., 193 Cal. 413, 224 P. 754, wherein it was held not a departure from employment for a messenger on a rainy night to go home and get his slicker in order to proceed with his duties in the rain; and Leffert v. Industrial Acc. Comm., 219 Cal. 710, 28 P.2d 911, 913, a case where an employee was killed while going to look for his overcoat. The employee was a salesman about to start out on his work in the early morning. In the case last cited, the court said: ‘As we look at these facts, Leffert was, when injured, engaged in doing something he might reasonably have been expected to do while in the performance of his duty. * * * The saving of his overcoat was also reasonably incidental to the performance of his duties as a salesman. * * * In view of the fact that Leffert drove an open car and that the salesmen started on their rounds at an early hour in the morning, the carrying of an overcoat seems an ordinary and necessary precaution. The absence of a showing that Leffert needed the coat on that particular day is immaterial. He was allowed to leave it at the office, and the conditions of his work required its use from time to time. That he sought to recover it for future use did not take him out of the course of his employment.’

While, upon the evidence presented, it might appear reasonable to anticipate that grape pickers would stop to wash themselves at the reservoir, even though the reservoir was not maintained for that purpose, it also appears that there was a relatively safe method of washing at the reservoir outlet, which, according to the evidence, was the method resorted to by the other employees. Upon the record presented it cannot reasonably be said that the employer contemplated a use of the reservoir by employees, such as that resorted to by the Vallez boys, which placed them in a dangerous position and resulted in their drowning. The risk undertaken by the boys, in washing their feet or wading at the edge of the reservoir, was not such a risk, under the circumstances presented, as could be said to have flowed from the nature of the employment as a rational and natural consequence.

The principle involved herein is illustrated in Northwestern P. R. Co. v. Industrial Acc. Comm., 174 Cal. 297, at page 306, 163 P. 1000, at page 1003, L.R.A.1918A, 286, as follows: ‘An employé engaged in and about machinery, where a part of his duty is to keep that machinery clean and in running order, while in the performance of that duty may carelessly become entangled in moving cogs, and recover. A traveling man, using a railway train with ordinary precautions and injured by a collision would be granted a recovery. But if that same traveling man, seeking to catch a train to go to another station, still under his employment, should attempt to board a moving train, this being no part of his instructions and no part of his duty, he has added to his vocation perils not contemplated in the contract of employment, and for injuries sustained to him by reason of this added risk the employer is not liable.’ Such instances serve to illustrate the general rule that an injury sustained while voluntarily doing something outside of the employment is not an injury suffered in the course of the employment. The act of the Vallez boys, in using the reservoir in the manner revealed by the evidence, falls within such general rule; and the circumstances presented do not furnish the basis for an exception. (For example, see: Zolkover v. Industrial Acc. Comm., 13 Cal.2d 584, 91 P.2d 106, wherein an employee, assaulted by an escaping thief, gave chase to the thief and was again assaulted outside the premises. In that case the court concluded that the sequence of events occurring without opportunity for reflection formed a part of the res gestae and constituted one continuous assault. The principle there applied is wholly inapplicable here.)

It follows that the employees in question did not sustain injury arising out of and occurring in the course of their employment, and the commission was without power to grant an award of compensation in the case. The awards are, and each of them is annulled.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.