Opinion
Rehearing Denied Sept. 1, 1967.
For Opinion on Hearing, see 64 Cal.Aptr. 323, 434 P.2d 619.
Everett A. Corten and Rupert A. Pedrin, San Francisco, for respondent WCAB.
T. Groezinger, Loton Wells and F. G. Loughrey, San Francisco, for petitioner.
Edward S. Ardzrooni, Jr., Oakland, for respondent John Raymond Cardoza.
CONLEY, Presiding Justice.
The State Compensation Insurance Fund seeks to annul an award of the Workmen's Compensation Appeals Board in favor of John Raymond Cardoza, a mechanic of Poso Canal Company, who was seriously injured when, during his working hours, he dived into the shallow waters of a canal located on neighboring property and owned by a corporation other than his employer. The petitioner urges that the injuries did not arise out of, nor were they incurred in, While the injuries to this young adult, including paralysis from the waist down, are such as to inspire ardent sympathy in any other human being, this court cannot permit such an emotional reaction to influence the review of the record and the decision that must follow. Our inquiry is limited to an ascertainment of whether there is any evidence whatever to warrant the finding of the referee adopted by the appeals board that the injuries in question arose out of, and were incurred during, the course of the employment of Mr. Cardoza.
The general rule applicable to the situation in question is thus stated in 2 Hanna, 'The Law of Employee Injuries and Workmen's Compensation,' (1st edition), page 162, as follows:
'It is well settled that an employee steps out of the course of his employment when he engages in activities constituting no part of his duties, whether or not such activities are expressly prohibited by the employer.'
The record shows that the applicant John R. Cardoza, a resident of Dos Palos, was employed as a mechanic by the Poso Canal Company on March 17, 1964. The shop is located some 200 feet from the San Luis Canal, in which he was later injured. His work as a mechanic was normally confined to the shop, but at various times he was subject to labor in other parts of the territory served by the Poso Canal Company. His working hours every week day were from 7 a.m. to 4:30 p.m. During working hours, at about 3 o'clock p.m., on the date of his injury, he and three other employees left the employer's premises and went to the neighboring San Luis Canal to swim. He dived into the canal from the bank, which was about 15 feet above the water line, and sustained severe injuries, including extreme trauma to the neck and spinal cord, with consequent paralysis from the waist down.
During the period of his employment, Mr. Cardoza had never before swum during working hours. And he had not observed any of his fellow employees doing any swimming during the working day, either on premises of the employer or in the neighboring canal where he was injured. The record shows that the only swimming that had ever been done by Poso Canal employees during working hours was in the year 1963, prior to his employment; then some of the Poso employees had been engaging in labor on a ditch bank about a mile from the shop and had become muddy in the course of their work; they were allowed by the foreman then to wash away the mud and some swimming incidentally took place in connection with that operation.
Mr. Cardoza testified that two or three weeks after he was first employed his foreman had told him, 'That if we do go swimming on company time, to do not let no one see you doing it.' This talk, Mr. Cardoza said, took place in the foreman's pickup truck while they were drinking coffee; however, he could not recall anything more about the occasion, or how the subject of swimming came up. The foreman, Jimmy Pink Williams, did not remember that any such conversation had ever taken place. As the referee and the appeals board found that there was such conversation, we shall assume that it did occur. It is clear that no permission on the part of the Poso Canal Company could be deduced from such a statement; the meaning is quite the contrary, namely, that the company rule was against such swimming, and that, if swimming was indulged in, it should be hidden.
Jimmy Leon Williams, son of the foreman, Jimmy Pink Williams, and another Poso workman, Joe Larry Lima, indicated in their testimony that, although they had gone swimming with Cardoza on the day of the injury, they knew that they were not supposed to do so.
The superintendent of the Poso Canal Company, Dewey Flores Frugoli, testified that he had never observed any Poso em Cardoza was working on a motor inside the shop on the date of his injury. The day was hot, the temperature being 105~ outside of the metal shed which housed the shop; there the temperature was somewhat greater.
The testimony with regard to so-called coffee breaks was that there was no set schedule for them and that the employees would drink coffee, or milk, or other liquid, at any time during the working day when they were inclined to do so.
The record shows that there was ample water for drinking and washing in the headquarters shed, and that there were also toilet facilities available to the workmen.
In our opinion, this case is controlled by the holdings in Liberty Mutual Ins. Co. v. Ind. Acc. Com., 39 Cal.2d 512, 247 P.2d 697, and Fireman's Fund etc. Co. v. Ind. Acc. Com., 39 Cal.2d 529, 247 P.2d 707. As was said in the former case at pages 517-518, 247 P.2d at page 700:
'In the present case, the only inference which can reasonably be drawn from the evidence is that Dahler's injury occurred while he was engaged in a personal recreational activity on his own free time in an area without the orbit of his employment and beyond the control or dominion of his employer. Under such circumstances, it cannot be said that the injury was sustained in the course of or incidental to his employment, or that it was proximately caused by the employment. Arabian American Oil Co. v. Industrial Accident Comm., supra, 94 Cal.App.2d 388, 393, 210 P.2d 732. Respondents' theory of compensation rests on the imposition of liability arising solely from the mere existence of the employment relationship and permits of no logical limitation, for carried to its conclusion, it would include any injury as a compensable claim if it occurred in pursuance of any recreational activity available in the general area regardless of connection with the employment. That view of the law would do violence to the express provisions of the Workmen's Compensation Act, which require that all compensable injuries arise out of and in the course of the employment. Torrey v. Industrial Accident Comm., 132 Cal.App. 303, 306, 22 P.2d 525; Pacific Indem. Co. v. Industrial Accident Comm., 27 Cal.App.2d 499, 502-503 81 P.2d 572; Arabian American Oil Co. v. Industrial Accident Comm., supra, 94 Cal.App.2d 388, 392-394, 210 P.2d 732. The award is annulled.'
The respondents depend, in part, upon Western Greyhound Lines v. Industrial Acc. Com., 225 Cal.App.2d 517, 37 Cal.Rptr. 580; there the driver of a Greyhound bus, who had a lay-over between runs of some 41 minutes, with the knowledge of the employer and in accordance with widespread custom went to a restaurant within a block of the bus station to get a cup of coffee; there she was attacked by a person in the restaurant, and it was held that under the fact of that case she was, in effect, on duty, and that the injury happened in the course of her employment. The case obviously differs on the facts in numerous particulars from the present situation and, in our opinion, furnishes no just ground for an approval of the present award; in that case, the 'lay-over' between trips was part of the regular schedule when the driver was on duty, the coffee drinking was known to, and approved by, the employer and the custom was in furtherance of the employer's business. This conclusion on our part is supported by Fireman's Fund etc. Co. v. Ind. Acc. Com., supra, 39 Cal.2d 529, 532, 247 P.2d 707, 709 where it is said:
'Respondents argue that liability under the compensation law has been extended to cover personal acts necessary to the comfort, convenience and welfare of the employee, and within that concept the We are fully conscious of the rule that 'the findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review' (Lab. Code, § 5953), but section 5952 of the Labor Code gives us jurisdiction to annul an award in the instances therein specified. In this case, we have searched the record industriously and conclude that there is no evidence which supports the conclusion of the referee and of the appeals board that Mr. Cardoza's injuries arose out of, or were incurred in, the course of his employment. To demonstrate our fruitless search, we shall quote and analyze the cerebrations of the referee, which are set forth in the 'REPORT OF REFEREE ON DECISION,' appearing on page 92 of the Return to Writ of Review. The report is in part as follows:
'Applicant, a quadriplegic, sustained injury when on a coffee break at 3 p.m. he left the company premises in the company of three other employees and ten minutes later he drove from a bank of canal, 200 feet away from defendant's property, striking the bottom of the canal thus sustaining injury. At this time he was being paid by the defendant for his coffee break. The defendant did from time to time use the roadway along the bank of the canal for repair and storage of its equipment. Applicant was first employed by defendant employer on March 17, 1964 and approximately two or three weeks after, his immediate foreman and supervisor, Jimmie P. Williams, told him that if he swam on company time, he was not to let anyone see him do it. This is the testimony of the applicant. Foreman Williams denies the conversation. However present with him at the time of injury was Jimmie L. Williams, foreman's son, who also went swimming on that occasion. Jimmie L. Williams testified that he last went swimming prior to the date in question in the canal, sometime in 1963 at a point one mile from defendant's premises on company time, in the presence of his father-foreman. He testified that he had been with the defendant employer seven or eight years prior to the injury and that his father told him that it was not the rule to go swimming on defendant's time. He stated that when he went swimming in 1963, he washed mud off his person that was acquired while working that day. Nowhere in the record does it appear that applicant was expressly instructed not to go swimming on company time during his coffee break. The temperature on the day in question was approximately 105 degrees and one of the three employees who accompanied applicant, suggested that they go swimming during their break.
'From the foregoing, I accept as credible, the testimony of the applicant as it relates to his conversation with foreman Williams. I also find that applicant had implied consent to swim during his coffee break. In Cal. Cas. Ind. Exch. v. IAC, 8 CCC 55 it was held in discussing the question of implied consent, that any reasonable doubt as to whether an act was contemplated by the employment in view of this state's liberal policy of construction in favor of the employee, should be resolved in favor of the employee.'
In the first place, there is no evidence to sustain the suggestion of the referee that the injury to the neck occurred during a specific, segregated period constituting a 'coffee break.' As already indicated, there was no formal time set apart for 'coffee breaks'; the men drank coffee, milk or other liquid whenever they felt like it during the whole working day. There is no evidence that any one mentioned a 'coffee It is our conclusion that the swimming incident was not in line with the work which the respondent Cardoza was hired to do, that it was an act of his own election on premises which were not owned or controlled by the Poso Canal Company, and that his injury did not occur in the course of his employment.
The observation by the referee as part of his reason for the award that no one told Cardoza, in so many words, that he could not swim during working hours seems to us to be patently irrelevant and entirely out of line with human experience. Even small boys playing hookey from school do not have to be told that canal swimming is not a part of the curriculum; neither do adults who are hired to act as mechanics have to be informed that swimming is not included in their job.
It appears clear to us that the award is not supported by substantial evidence (Lab. Code, § 5952, subd. (d)), that, consequently, the award was unreasonable (Lab. Code, § 5952, subd. (c), and the appeals board acted in excess of its powers (Lab. Code, § 5952, subd. (a)).
The award is annulled.
STONE and GARGANO, JJ., concur.