Opinion
Page __
__ Cal.App.2d __253 P.2d 737EMPLOYERS MUT. LIABILITY INS. CO. OF WISCONSINv.INDUSTRIAL ACC. COMMISSION et al.Civ. 19373.California Court of Appeals, Second District, Third DivisionFeb. 26, 1953Hearing Granted April 23, 1953.
[253 P.2d 738] Spray, Gould & Bowers, Los Angeles, for petitioner.
Edmund J. Thomas, Jr., T. Groezinger, San Francisco, for respondents Industrial Acc. Commission.
SHINN, Presiding Justice.
On August 23, 1951, Fred E. Gideon, an employee of Douglas Aircraft Company, suffered an idiopathic (epileptic) seizure while at work, fell to the concrete floor, and in the throes of seizure struck his head several more times on the floor until a fellow employee cushioned his head. For this injury he was awarded compensation by respondent commission, reversing the finding and conclusion of the referee that the injury did not arise out of Gideon's employment.
Petitioner, the employer's compensation insurance carrier, seeks annulment of the award, contending that the injury was not a compensable one under §§ 3208 and 3600 of the Labor Code, in that it did not 'arise out of' the employment. Nothing had occurred in Gideon's work which induced the seizure. It was due solely to the condition from which he was suffering.
The present proceeding squarely presents the question whether an employee who suffers a fall, solely by reason of an idiopathic seizure, and is injured by striking his head upon a cement floor, thereby sustains a compensable injury. It is settled that such an injury is compensable if in falling the employee comes in contact with some instrumentality which creates a special risk of the employment. National Automobile & Casualty Ins. Co. v. Industrial Acc. Comm., 75 Cal.App.2d 677, 171 P.2d 594 (falling against a sawhorse). This rule is now recognized in other jurisdictions. Barath v. Arnold Paint Company, 238 N.Y. 625, 144 N.E. 918 (fall from a scaffold); Mausert v. Albany Builders' Supply Co., 250 N.Y. 21, 164 N.E. 729 (fall out of a truck).
The reason for the rule was stated in the National Automobile case, supra, 75 Cal.App.2d at page 681, 171 P.2d at page 596, 'The respondent commission, under the evidence quoted, was justified in concluding that the sawhorse against which the applicant fell constituted a special risk of the employment and that his traumatic injuries were to be attributed to its presence at his place of work.' (Emphasis added.) There is, however, a sharp division of authority where the injury is not caused or contributed to by any instrumentality used in the industry which constitutes a special hazard of the service. Such is the situation in the present case. The following are typical cases in which awards of compensation were for this reason denied. Lander v. British United Shoe Machinery Co. Ltd., (Ct.App.England & Wales 1933), 102 L.J. (K.B.) 768, 26 B.W.C.C. 411; Andrews v. L. & S. Amusement Corporation, 1930, 253 N.Y. 97, 170 N.E. 506; Cinmino's Case, 1925, 251 Mass. 158, 146 N.E. 245, 37 A.L.R. 769; Bibb Mfg. Co. v. Alford, 1935, 51 Ga.App. 237, 179 S.E. 912; Stanfield v. Industrial Commission, 1946, 146 Ohio St. 583, 67 N.E.2d 446. In other jurisdictions such injuries have been held to be compensable. Wright & Greig, Ltd. v. M'Kendry, (Scottish Ct. of Session 1919), 56 S.L.R. 39, 11 B.W.C.C. 402; New Amsterdam Casualty Co. v. Hoage, 1932, 61 App.D.C. 306, 62 F.2d 468; Savage v. St. Aeden's Church, 1937, 122 Conn. 343, 189 A. 599; Barlau v. Minneapolis Moline Power Implement Co., 1943, 214 Minn. 564, 9 N.W.2d 6; Protectu Awning Shutter Co. v. Cline, 1944, 154 Fla. 30, 16 So.2d 342; Pollock v. Studebaker Corp., Ind.App.1951, 97 N.E.2d 631. These conflicting conclusions were reached by the courts under statutes which did not differ in material respect from our own. The reasoning in the first line of cases is that if the condition in which the employee receives injury is one which the general public encounters daily at places other than places of employment, and is therefore not peculiar to the employment, it does not arise out of the employment and is therefore not [253 P.2d 739] compensable. This view is well stated in the majority opinion in Andrews v. L. & S. Amusement Corporation, 253 N.Y. 97, 170 N.E. 506, 507. The facts were that Andrews, while walking on an alleyway at the corner of a building where he was employed to do some painting, 'had an epileptic seizure which caused him to fall, and in falling his head struck the cement sidewalk, whereupon he sustained injuries in the nature of a fractured skull, from which he died on the same day.' It was said 170 N.E. at page 507: 'The epileptic seizure caused him to fall to the sidewalk, striking his head and fracturing the skull. Where was there any added risk due to the employment? The same result might have followed if he had been coming to or going from his employment, or even in his own house, if he had fallen and struck his head on a chair, table, or other hard substance. If the epileptic fit itself had killed him, like an attack of heart disease, all concede that there would be no recovery. The risk of falling to the pavement in such a fit was not due to the employment. * * * There was no accident; he fell because of internal disorders, and the injury resulted from no added risk because of his employment. This distinction runs through many cases.' The court annulled an award of the State Industrial Board and held that the accidental injuries did not arise out of the employment. After a discussion of numerous cases, including those of the courts of Scotland and England, the court said 170 N.E. at page 508: 'Following, therefore, the distinction which has been drawn by this line of cases, and realizing that the Workmen's Compensation Law has not yet been extended to diseases which cause a man's death, unaccompanied by any added risk due to the employment, the order of the Appellate Division [226 A.D. 623, 236 N.Y.S. 625] should be reversed and the claim dismissed, with costs against the State Industrial Board in this court and in the Appellate Division.' (Emphasis added.)
We think there will not be found a more through or able discussion of the problem than it received in Lander v. British United Shoe Machinery Co., Ltd., supra, (Ct.App. England & Wales 1933), 102 L.J. (K.B.) 768; 26 B.W.C.C. 411. A workman had fallen on the brick floor of a lavatory in his place of employment during an epileptic fit and died as a result of his injuries. The county court judge had awarded a death benefit to the widow, which judgment was reversed on appeal. Each of the Lords who heard the appeal affirmed the proposition announced by Lord Russell in the case of Lawrence v. George Matthews (1924), Ltd., (1929) 1 K.B. 1; 21 B.W.C.C. 345, at p. 362: 'If a workman is injured in an accident resulting from a risk to which every one is subject, but which is not necessarily incident to the performance of his work or to which he is not by his work abnormally subjected, the accident does not arise out of his employment.' Excerpts from the opinions appear below. [253 P.2d 740] The reasoning of the cases which take the opposite view was stated in the dissenting opinion of Judge O'Brien in the Andrews case, supra, 170 N.E. 506, who said 170 N.E. at page 510: 'The question always is: Did the workman's employment require him to be in the place, whether a floor or a walk or other structure, which caused his injury?' This notion that an injury is compensable if the employment caused the employee to be present at the time and place of the accident has support in the majority [253 P.2d 741] opinion in Wright & Greig, Ltd. v. M'Kendry, supra, 56 S.L.R. 39, Vol. 11, B.W.C.C. 402, which adopted the rule that had been previously stated as follows (p. 408): 'In my opinion if the conditions of the workman's employment obliged him to work in a particular building and thereby exposed him to the risk of the accident which has happened, this may be described as a peculiar danger to which from the nature of the employment the workman is exposed.' This is merely saying that if the injury occurs in the course of the employment it is compensable. The cases do not all confess to this concept but they nevertheless utilize it. It cannot be denied that they have allowed compensation for the reason that the service being performed required the employee to be present at the time and the place of the accident, although there was no special hazard involved. If liability exists whenever the employee is injured while at work, namely, in the course of the employment, the requirement that it must also arise out of the employment means nothing. We consider the reasoning in the non-liability cases to be sound and without logical answer in the cases which have imposed liability. The rule we approve gives effect to the provisions of the several statutes of our state that the injury, to be compensable, must arise out of the employment, whereas the cases which hold to the contrary rule have in effect read that condition out of similar statutes. Out Supreme Court, speaking through Justice Meyers, in Storm v. Industrial Acc. Comm., 191 Cal. 4, 7, 214 P. 874, 875, in rejecting the latter view, gave approval to the doctrine: 'It is not sufficient for a workman to say, 'I should not have been injured unless I had been where I was and doing the work which I was employed to do.'' This is to say it is not sufficient that the injury occurred in the course of the employment. To the present time the California cases have approved and followed this principle.
Lord Hanworth, M.R.: 'But Lord Haldane, in the case of Upton v. Great Central Railway Company (supra), says this at p. 273; 'A direct physical cause will, of course, fall among those which are included in sect. 1 of the Workmen's Compensation Act, but the scope of the Act and the inquiry which it enjoins appear to extend also to the general conditions under which the workman has been directed to act. If he simply dies of heart disease the effect of which has not been aggravated by anything which his employment led to his doing, or if he is struck by lighting in a place where the conditions of his employment rendered him no more exposed to danger than any member of the public not so employed, the injury will not have resulted from the conditions under which he was being employed.' But then he goes on: It is not easy to lay down conditions which must be fulfilled whenever a man falls to bring him within or take him outside the statute. The mere fact that the incidents of his accident have arisen in the course of the employment is not in itself sufficient. 'They must be such that the accident has some sort of causal relation with them, although not necessarily an active physical connection.''
A study of the history of our several compensation laws also leads to the conclusion that compensation is not provided for injury for the sole reason that the service being performed required the employee to be where he was when the injury occurred.
Our first compensation law, the Roseberry Act, § 3(2), Stats, 1911, Ch. 399, p. 796, provided workmen's compensation 'Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the line of his duty or course of his employment as such.' There was no requirement that the accident arise out of the employment in order to impose liability upon the employer.
Section 21, Article XX of the Constitution, being a new section adopted October 10, 1911, authorized the legislature to enact legislation to 'create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment irrespective of the fault of either party.' Likewise, the amendment of § 21, adopted November 5, 1918, empowered the legislature to enact legislation 'to create and enforce a liability on the part of any or all persons to compensate any or all of their workmen for injury or disability, and their dependents for death incurred or sustained by the said workmen in the course of their employment, irrespective of the fault of any party.'
It was therefore competent for the legislature, under the authority thus delegated to create a liability of employers for any injury incurred in the course of employment even though it did not 'arise out of' the employment. The legislature repealed the Roseberry Act and passed the Boynton Act (Stats.1913, Ch. 176, p. 279). As stated in its title, it related to accidents 'causing the injury to death of employees in the course of their employment,' and it provided in § 12 as set out below. The liability thus created was not as broad as that envisioned by the Constitution. It will [253 P.2d 742] be noted that in the first sentence of § 12 the injury must be caused by accident 'arising out of and in the course of the employment', whereas in paragraph (3) one of the conditions of liability was: 'Where the injury is proximately caused by accident' etc. If these two provisions, when read together, were at all ambiguous or conflicting, they were brought into harmoney by the amending act, Stats.1915, Ch. 607, p. 1079. It substituted in § 12(a), subdivisions (1) and (2), the word 'injury' for the word 'accident' and amended subdivision (3) to read as set out below. In this subdivision the word 'employment' was substituted for the word 'accident.' Thus it was made crystal clear that liability should exist for injury sustained in the course of the employment only in case it arose out of the employment. The next act was Statutes of 1917, Ch. 586, p. 831. Section 6(a) of the act followed without substantial change the above provisions of the 1915 Act, as did also the amendments of 1923 and 1929.
'Sec. 12. (a) Liability for the compensation provided by this act, in lieu of any other liability whatsoever, shall, without regard to negligence, exist against an employer for any personal injury sustained by his employees by accident arising out of and in the course of the employment and for the death of any such employee if the injury shall proximately cause death, in those cases where the following conditions of compensation concur:
'(3) Where the injury is proximately caused by the employment, either with or without negligence, and is not so caused by the intoxication or the wilful misconduct of the injured employee.'
Sections 3208 and 3600 of the Labor Code read as set out below.
§ 3208. "Injury' includes any injury or disease arising out of the employment, including injuries to artificial members.'
Except for the Roseberry Act none of the workmen's compensation acts which preceded adoption of the Labor Code provided liability for accidents or injuries other than those arising out of and in the course of the employment. We think there is no reason to doubt that the terms 'arising out of' and 'proximately cause by' the employment whenever found in a single statute were used in the same sense.
If we were to be guided by the former Roseberry Act, or if the present law was of the broad scope authorized by the Constitution, there would be no reason for questioning the propriety of the award. If we were in doubt as to the purpose of the legislature in imposing the condition that the injury must arise out of the employment, from a consideration of the phraseology of §§ 3208 and 3600 of the Labor Code, it would be dispelled by the fact that our original compensation act contained no such requirement and that it has been incorporated in all subsequent acts. The award in question here could be supported only upon the theory that 'arising out of the employment' means no more than that the employee in the course of his work was at the place of the injury at the time the injury occurred. No more than this was required by the Roseberry Act, but that concept of [253 P.2d 743] the proper scope of workmen's compensation has been consistently rejected by the legislature beginning with the act of 1913. This has not been due to any real or supposed constitutional limitation for, as we have said before, the legislature under § 21 of Article XX at any time could have created a liability of employers for injuries occurring in the course of the employment. When the legislature discarded the broad basis of compensation of the Roseberry Act it intended that those who should administer the subsequent laws should not award compensation for the sole reason that the injury arose in the course of the employment, or as some courts have stated it, because the employee was required in this work to be at the place when and where he was injured. To say that an injury arises out of the employment if the employee was required to be at the place where the injury occurred would effectively read out of our law the requirement that the injury must arise out of the employment, as well as in the course of the employment, and would, in our opinion, set at naught the expressed will of the legislative branch of our government.
It is clear to us that the claimant Gideon did not suffer an injury which arose out of his employment. The place where he was working had a cement floor, but this was not a condition peculiar to the employment. Cement floors or other hard floors are as common outside industry as within it. The floor did not create a hazard which would not be encountered on a sidewalk or street or in a home where a hard surface of the ground or a hard floor existed. Had Gideon fallen in the same manner upon such a floor or surface at any place other than the place of his employment he would have suffered the same injury and the hazard would never have been less, except when he was in a place where he might fall upon something so soft or resilient that the blow would not result in injury. We would know of few such places where humans might ordinarily be found.
Workmen's compensation is provided as a part of the cost of industrial injuries which should be borne by business and the general public. It is not a system of accident or health insurance. We have seen that our statutory law, except for the Roseberry Act, has never recognized as a charge upon industry compensation for any and all injuries which occur in the course of employment. In summary, the phrase, 'arising out of the employment,' means that there must be a causal connection between the nature of the service, or the hazards of the employment, itself, and the injury. Otherwise it would mean nothing. An injury which occurs under conditions which the employee encounters daily, away from his work, and which do not create a special hazard of the employment, is not an industrial injury within the proper concept of that term or the scope of the Workmen's Compensation Law as we understand it.
There is a passage in the opinion of Lord Lawrence, L. J., quoted above, which might well be pondered by those who would extend the coverage of workmen's compensation to any and all cases, however extreme, to which it might be applied upon the most tenuous theories. That statement is: 'I confess that I am glad to be able to come to this conclusion, as a contrary decision would have the effect of preventing men like the deceased who suffer from occasional fits of epilepsy from getting any employment.' Extending the coverage of workmen's compensation to non-industrial injuries, while favoring a few, may yet, if carried to unreasonable lengths, render many afflicted persons unemployable. It would be a short sighted policy, and one which should not be developed by decisions of the commission or the courts.
The award is annulled.
WOOD and VALLÉE, JJ., concur.
[p. 418]: 'It seems almost grotesque to say that in order to avoid a possible fall by a possible epileptic person some provision for a soft floor should have been made in this particular locality of the world. * * * If the locality to which the man is induced to go by his employment is one which contains a danger, and that danger becomes active, and the man is injured, as in the case of Lawrence v. George Matthews (1924), Ltd. (supra), then he can recover. But if the man is in perfect safety upon premises adequate and proper for that purpose, and then he without any extra strain to be imputed
to his work, or any other inducement thereto, falls down entirely from a cause which is particular and peculiar to himself, I do not think there is evidence which can impose liability upon the employer.'
Lawrence, L. J.: 'Speaking for myself, and apart altogether from the authorities cited to us, I cannot conceive how it can reasonably be said that the fatal injury which this unfortunate man sustained was an injury by accident arising out of his employment within the meaning of sect. 1 of the Act. His fall was caused by a fit which he might have had at any time and in any place, and which was not in any way caused by or brought on by his employment. That the employer should be held liable because the fit happened to come on whilst the workman was on his premises would, I think, be extending the liability of employers under the Act beyond all reasonable bounds. * * * The lavatory floor was no more dangerous than the pavement in the street, or in fact any hard floor. The evidence shows that a man in an epileptic fit usually falls backwards and is, of course, liable to fracture his skull if the fit should occur whilst he is walking or standing on a hard surface. * * * The workman was as safe on the brick floor of the lavatory as he would have been on the stone floor of his own kitchen, or would have been in the street, or in fact at any other position in which a man ordinarily has to stand or walk. I agree with Lord Salvesen that if it were enough in circumstances like the present to say that the fall was the accident, and that this was the proximate cause of the injury, and that it was unnecessary and irrelevant to inquire further, the words 'arising out of the employment' might as well be erased from the Act. * * * The only evidence here is that the accident happened in the lavatory; but there is no evidence that it resulted from any danger connected with the lavatory as a lavatory. I confess that I am glad to be able to come to this conclusion, as a contrary decision would have the effect of preventing men like the deceased who suffered from occasional fits of epilepsy from getting any employment.'
Slesser, L. J.: 'I agree that this appeal must be allowed. When we look at the first section of the 1925 Act--and these words are contained in the 1906 Act and in the 1897 Act--we find that it is necessary, in order that a workman shall succeed, to show that personal injury by accident arose out of and in the course of the employment. In listening to the argument which we have heard, and in considering the award of the learned judge, it seems to me, as has been suggested by Lord Salvesen in the case of Wright & Greig, Ltd. v. M'Kendry (1918), 11 B.W.C.C. 402, that if those contentions be right, the words 'arising out of' do not in any way limit the ambit of the phrase 'in the course of'; for what in substance is said is this: Any man meeting with any accident in any place where there are not alleged any circumstances of special or peculiar danger, may recover compensation because he has in that place met with an injury. That seems to me far too wide if one had to consider the matter afresh now for the first time; but there is ample authority, in my opinion, which shows us that such a conclusion would be an improper one, and where the accident falls, as it does fall, if it falls at all in any way to be considered within the classes which have been so clearly stated by Russell, L. J., as he then was, in Lawrence v. George Matthews (1924), Ltd., [1929] 1 K.B. 1; 21 B.W.C.C. 345, it falls within the fourth of his classes, and it would have here to be shown that the accident had occurred to the workman by reason of his employment bringing about his presence at the particular spot and so exposing him to a danger which is in fact proved to exist at that particular spot. * * * There was no exposure to danger at a particular spot on the facts of this case except because this man was an epileptic. The fact of his epilepsy had no relation to his employment, and in my view all nexus of any kind between the unhappy casualty which occurred and the man's employment is completely lacking.'
'(1) Where, at the time of the accident, both the employer and employee are subject to the compensation provisions of this act.
'(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment as such.
'(3) Where the injury is proximately caused by accident, either with or without negligence, and is not so caused by the intoxication or the wilful misconduct of the injured employee.'
§ 3600. 'Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as provided in section 3706, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:
'(a) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.
'(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.
'(c) Where the injury is proximately caused by the employment, either with or without negligence.
'(d) Where the injury is not caused by the intoxication of the injured employee.
'(e) Where the injury is not intentionally self-inflicted.' (Based on Stats.1917, ch. 586, § 6, p. 834).