Opinion
Hearing Granted by Supreme Court July 29, 1927.
Proceedings under the Workmen’s Compensation, Insurance and Safety Act of 1917 by George Abram by his guardian ad litem, Henry D. Abram, opposed by the Hartford Accident & Indemnity Company, in which the State Compensation Insurance Fund was a party. Award of the Industrial Accident Commission in employee’s favor, and the Hartford Accident & Indemnity Company brings certiorari. Award annulled so far as it affects the Hartford Accident & Indemnity Company.
COUNSEL
George L. Greer, of Los Angeles, for petitioner.
G. C. Faulkner, of San Francisco (W. F. Beem, of San Francisco, of counsel), for respondents.
OPINION
HOUSER, J.
In this proceeding the petitioner seeks to have reviewed an award made by the Industrial Accident Commission.
In substance, the facts are that a boy named Abram was employed to make daily deliveries of a newspaper over a given route; that the territory which was thus presumed to be served was included within a much larger area which was served by a corporation in the delivery of milk to its customers; that without the knowledge or acquiescence of the proprietor of the newspaper the boy made an arrangement with the man who delivered the milk by which it was understood that, where the milk route and the newspaper route covered practically identical territory, the boy should be given transportation on the milk wagon, for which privilege he would compensate by helping the milkman deliver milk within such territory; that on two days of each week, to wit, on Saturday and on Sunday, the boy would thus assist the driver of the milk wagon, not only for that part of the milk route which was practically identical with the newspaper route, but, in addition thereto, the remainder of the milk route, for which extra service the boy was to receive a money consideration; that on one of the Saturdays when the boy was thus engaged to perform the larger service, after all his newspapers, with the exception of one, had been delivered, he proceeded to and did in part carry out his agreement with reference to that part of the milk route which had not then been served; that, after leaving the neighborhood which was covered by the newspaper route, the milkwagon route traversed a very large area in delivering milk to consumers, and finally in the course thereof the driver and the boy were working to and fro on different streets, returning in a general direction toward the place where the one newspaper still remaining in the possession of the boy was to be delivered; that, while still engaged solely in the delivery of milk, and when located on a street paralleling that on which the house was situated at which the newspaper was to be delivered, and approximately two blocks therefrom, in reaching for a bottle of milk the boy slipped and fell under the milk wagon, which ran over him and caused him serious injuries; that thereafter an application for compensation for such injuries was duly presented to respondent Industrial Accident Commission, and an award was made by it as against both the newspaper proprietor and the corporation owner of the milk route. A petition by the petitioner herein, as insurer of the proprietor of the newspaper, for rehearing on the award having been denied by respondent, petitioner has come to this tribunal on a writ of review affecting the award as against the proprietor of the newspaper route only.
The sole question submitted to this court for determination is purely one of law, to wit, whether from the facts as hereinbefore set forth the respondent was justified in reaching the conclusion that at the time of the happening of the accident which resulted in the injury to the boy he was in the employ of the proprietor of the newspaper, and was acting within the course of his employment.
Generally speaking, it is a principle of law so well established as to require no citation of authority for its support that, in the absence of a particular statute to the contrary, an employee will not be permitted to recover damages or compensation for an injury sustained by him where the accident which was the cause thereof occurred through circumstances not arising out of the employment of the injured person.
Section 6 of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831) provides for compensation to the employee for any injury sustained by him "arising out of and in the course of the employment." As is stated in the case of General Accident F. & L. A. Corp. v. Industrial Accident Commission, 186 Cal. 653, 200 P. 419, it would seem that no comprehensive definition can be formulated which will correctly and with absolute certainty determine what accidents will be embraced within the phrase "arising out of and in the course of the employment," and therefore each case must be decided conformably to the specific facts which are therein presented. Perhaps the leading authority in which an attempt has been made to generally outline the boundaries of the phrase is that entitled In re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306. It is there said:
"It is sufficient to say that an injury is received ‘in the course of the employment when it comes while the workman is doing the duty which he is employed to perform. It 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. Under this test, 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. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."
In the case of Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820, it was held that compensation by an employee for an injury could be recovered from each of two concurrent employers of the injured person. The facts were that a man was employed to deliver newspapers both in bulk and to individual customers along a route covered by a state highway. By a second employer, who operated a dairy, the man was also engaged to carry cream from the end of the newspaper route back to the dairy which was located in the vicinity of the place where the newspaper route commenced. The man used a motorcycle with a side car attachment in performing his work. On the day on which the accident happened the man had procured the newspapers which were to be delivered, together with some ice for colling the cream. He then went to his home for the purpose of getting some empty milk cans in which to carry the cream. Either of two roads was available to the man in departing for the vicinity where his work in delivering newspapers on the state highway would actually begin. One of such roads was in a better condition for travel from the newspaper office to the state highway than was the other road, which latter road was a little shorter and nearer to the man’s home and the dairy than was the former road. The road nearer the man’s home, however, intersected the road which was nearer the newspaper office before the state highway could be reached. After getting the empty milk cans, and while traveling on the road nearer to his home, before such road intersected the other and better road, he met with the accident and sustained the injury for which compensation was sought.
Based upon the fact that, after the employee had secured the newspapers, instead of going immediately on the better road which passed the newspaper office to the state highway, he went to his home to get the empty milk cans, and thereby apparently deviated from a direct course from the newspaper office to the state highway on which the deliveries of the newspapers were to be made, the question was raised as to the liability of the proprietor of the newspaper for the damages resulting from the injury to the employee. The court held in effect that, in view of the fact that it was not denied, the employer was aware of, and acquiesced in, the practice of the employee to take the road which he did; that, because there was no showing that the employee was not privileged to select the road which he would take in reaching the commencement of his newspaper route, and that any deviation which the employee had made had been completed, at the time of the accident he "was engaged in the performance of his duty carrying newspapers in bulk preparatory to their delivery to individual customers."
The facts of that case are distinguishable from those of the instant case in two important particulars, to wit: First, as to the knowledge and acquiescence of the employer in the practice followed by the employee; secondly, at the time the accident in the cited case occurred the employee had completed the deviation from his work of delivering the newspapers; while in the instant case at the time the accident occurred the employee was still engaged solely in delivering milk, and had not returned from his deviation from delivering newspapers.
So far as the proprietor of the newspaper was concerned, it is clear that the boy was engaged to perform a definite service, to wit, to deliver a newspaper at each of several designated places. After the delivery of all the newspapers, with the exception of the one which remained in the possession of the boy, and, upon his departure with the milkman from the neighborhood covered by the newspaper route, the boy occupied a position no different from that which he would have occupied had he left his occupation as a carrier of newspapers and gone away on any other business or pleasure. For example, had the boy taken the one newspaper with him and gone with another boy up in nearby hills on a rabbit hunting expedition, expecting to deliver the one newspaper on his return from the rabbit hunt, and had the boy been injured while thus engaged, could it be reasonably contended that, while the boy was rabbit hunting, he was acting within the scope of his employment as a deliverer of newspapers? Or, assuming that through the carelessness of the boy while he was either on the milk route, or on the rabbit hunt, he had caused a personal injury to result to some third person, would his employer, the proprietor of the newspaper, have been held liable for the damages thus caused? Or, assuming a third situation: Instead of the remainder of the milk route lying in a neighborhood adjoining that covered by the newspaper route, let it be assumed that such remainder of the milk route lay in a territory somewhat remote therefrom-say, a distance of ten miles-would it be reasonable to hold that, although the general trend of the milk route at the time the accident occurred was in the direction of the house at which the one remaining newspaper in the possession of the boy was to be delivered, the boy was acting in any capacity in connection with his occupation of delivering newspapers?
If the definition as to what constitutes "arising out of and in the course of the employment," as contained in the McNicol Case, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306, be accepted as a guide, it will become apparent that the injury sustained by the boy in the instant case is not compensable so far as the proprietor of the newspaper is concerned, for the reason that the accident did not occur "while the workman is (was) doing the duty which he is (was) employed to perform," and that there was no causal connection between the conditions under which the delivery of the newspaper was required to be performed and the resulting injury. Unless it could have been contemplated by the employer of the boy that he would make an arrangement with the milkman facilitating the delivery of the newspapers, and that the boy would leave his work and engage solely in the delivery of milk, it cannot be said that the injury to the boy "followed as a natural incident" of his work. While in the instant case the evidence shows that no restrictions were placed by the employer upon the boy with reference to the method, mode, or manner of making deliveries of the newspaper, the rule is that, before an employee will be entitled to be compensated for an injury, it must appear that the accident arose out of his employment, that it is possible to trace the injury to the nature of the work of the employee, or to the risks to which the work exposes him; and that the accident must have been one resulting from a risk reasonably incident to the employment. 27 Cal.Jur. p. 344, and cases there cited.
Had the accident in question occurred at a time when the boy was concurrently engaged in his two separate occupations of delivering newspapers and assisting in the delivery of milk, in view of the decisions, and especially the case of Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820, it perhaps would follow that the proprietor of the newspaper would be liable for compensation to the boy as provided by the statute; but, as stated in 27 California Jurisprudence, at page 332: "If at the time of his injury he was engaged in service which pertained peculiarly to one employer, he may claim no compensation from the others." With the conditions present as hereinbefore set forth, that is to say, that at the time the accident occurred the boy had deviated from his employment as a newspaper carrier, and at that time was acting without the scope of such employment, it results that he should have received no award of compensation arising out of his employment as such carrier.
So far as the award by respondent affects petitioner, it should be annulled. It is so ordered.
We concur: CONREY, P. J.; YORK, J.