Liberty Mut. Ins. Co. v. Industrial Acc. Commission

• Decision Date: 28 August 1952
• Citation: 39 Cal.2d 512,247 P.2d 697
• Parties: LIBERTY MUT. INS. CO. v. INDUSTRIAL ACC. COMMISSION et al. S. F. 18590.
• Court: California Supreme Court

Page 697

247 P.2d 697

39 Cal.2d 512

LIBERTY MUT. INS. CO. v. INDUSTRIAL ACC. COMMISSION et al.

S. F. 18590.

Supreme Court of California, in Bank.

Aug. 28, 1952.

Leonard, Hanna & Brophy and Edmund D. Leonard, San Francisco, for petitioner.

Edmund J. Thomas, Jr., T. Groezinger, Robert Ball, Leonard Levy and Stanley P. Mamalakis, San Francisco, for respondents.

SPENCE, Justice.

Petitioner seeks to annul an award of the Industrial Accident Commission in favor of the injured employee Glenn W. Dahler. It maintains that the injuries did not arise out of, nor were they incurred in the course of, the employment, and that therefore they are not compensable under the Workmen's Compensation Act. Labor Code, § 3600(b, c).

There is no dispute as to the facts. The North Fork Association, a sportsmen's club, owned a large recreational area in the Sierras. In a portion of this area, it maintained a summer resort, 'The Cedars,' for the exclusive use of its members, their families and guests. Located in the resort area were some 25 cabins owned by the members, as well as a store and restaurant operated as a concession by Swafford and Company, the employer here involved.

Dahler, a college student, was hired by Mr. Swafford to work at the concession during the summer as a dishwasher and helper. As his duties were discussed at that time, he would be required to serve breakfast and dinner and to open and operate the store a couple of hours in the morning. He was to receive $35 per week, plus room and board. He began his work at the resort on June 27, 1950. He had no definite hours of employment but followed a daily routine established by Swafford when the latter was on the premises for a few days to arrange for the concession's opening for business on July 1. Upon this basis Dahler started work at 7:30 a. m. cleaning the trays for breakfast, which was served at 8:00 a. m.; then he washed dished until about 10:00 a. m.; and from 10:00 or 10:30 a. m. until noon he worked in the store filling orders. He usually ate lunch between 10:00 and 1:00 p. m., and then he would return to the work of washing dishes and cleaning the dining room, finishing these chores between 2:00 and 3:00 p. m. Normally he would have no further work to perform until 5:00 p. m., when he would begin drying trays and serving salads for the evening meal, wash the dinner dishes and then clean the dining room, completing this work about 10:30 p. m. Once each week in the afternoon when a truck would come with groceries, he would unload the supplies and stock them in the store after he finished his diningroom work in the afternoon. Occasionally in the afternoons he would deliver goods from the store to the cabins of club members. He also had the duty of delivering telephone messages to the members at their cabins. There were only 3 employees regularly stationed at the resoret in connection with the operation of the concession: Dahler, the cook Robinson, and the cook's wife. Robinson was in charge and supervised Dahler's work, but the latter's routine followed the pattern fixed by Swafford.

On the association's property but not on the portion occupied by the concession was a stream with a dam built across it. The pool, which was created by the dam and was used for swimming, was some 10 blocks distant from the restaurant and some 7 or 8 blocks beyond the cabins. Dahler had not been told that he could or could not go swimming in the stream but it was just 'more or less taken for granted' that he could. He had swum there on several occasions, the first time being on July 3, when he told Swafford that he was going swimming in the afternoon during his free hours and Swafford did not object. When he had free time, Dahler could also have gone fishing or hiking, which were other recreational activities available in the area. Dahler had been furnished a cottage immediately adjacent to the store, which cottage was fitted with all the necessary sanitary facilities so that his swimming in the stream was not necessary for cleansing purposes.

The injuries in question occurred on July 19. On that day Dahler finished his early afternoon work about 3:00 o'clock. He then went to the dam to swim, as a matter of personal pleasure during his free time. He swam, sun-bathed, and undertook to show a girl how to swim. He then proceeded to dive into the stream from some rocks some 3 feet above the water level, when he struck a mudbank beneath the surface and suffered a severe injury.

On this evidence the commission found that Dahler 'sustained injury arising out of and in the course of the employment * * * while diving into a pool on the employer's premises,' and made its award accordingly. (Emphasis added.) Respondents concede that the place of injury, the swimmingpool, was not on the employer's premises and therefore that portion of the finding is erroneous. However, there still remains the question of whether Dahler's injury is compensable as arising out of and in the course of the employment.

Our Workmen's Compensation Act has been broadly construed to embrace various activities which can, in a reasonable sense, be included within its coverage as incident to the employment. So it was said in Employers' Liability Assurance Corp. v. Industrial Accident Comm., 37 Cal.App.2d 567, at pages 573-574, 99 P.2d 1089, at page 1092; 'If the particular act is reasonably contemplated by the employment, injuries received while performing it arise out of the employment, and are compensable. In determining whether a particular act is reasonably contemplated by the employment, the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered. Any reasonable doubt as to whether the act is contemplated by the employment, in view of this state's policy of liberal construction in favor of the employee, should be resolved in favor of the employee.' Also, Pacific Indemnity Co. v. Industrial Accident Comm., 26 Cal.2d 509, 514, 159 P.2d 625; Bethlehem Steel Co. v. Industrial Accident Comm., 70 Cal.App.2d 382, 387-388, 161 P.2d 59. But in adhering to the policy of liberal construction of the act, it nevertheless does not appear possible to stretch its broad purpose to cover a case such as this.

The record indisputably establishes that Dahler was injured while diving and swimming solely for his own pleasure in a stream off his employer's premises and on his free time during a work interlude in mid-afternoon. It is true that the employment may be said to have contemplated that Dahler would engage in some recreational activity during his free time if he so chose whether it be swimming, sun- bathing, fishing, hiking or any other recreational pursuit available in the general area. But that consideration alone would not constitute every recreational activity chosen by Dahler a part of his compensation under his contract of employment nor make the injury compensable as arising out of and in the course of the employment. There is no evidence that at the time of hiring Dahler, anything was said about his participation in any available recreational activities nor even mention made of the stream; or that Dahler after starting his employment, ever discussed with either Swafford or Robinson, the cook, whether he could or could not swim in the stream. It does appear that when Dahler told Swafford and Robinson on different occasions of free time that he was going to swim in the pool, neither offered any objection. But neither was in a position to object, for the pool weas located several blocks beyond the cabin and concession area of the resort where Dahler worked and on property over which Swafford had no control.

'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.' California Casualty Indemnity Exch. v. Industrial Accident Comm., 190 Cal. 433, 436, 213 P. 257, 258. The mere fact that Dahler as Swafford's employee had permissive use of the recreational area beyond the employer's premises does not give rise to blanket protection under the compensation law. Rather, Dahler's swimming activities, unrelated to the employment, remote from his place of work and its risk, pursued as an off-duty personal diversion in the employee's free time, in an area beyond the dominion and control of his employer, and yielding neither advantage nor benefit to the employer, must be held to have been wholly without the compass of the compensation law. Arabian American Oil Company v. Industrial Accident Comm., 94 Cal.App.2d 388, 392-393, 210 P.2d 732.

Clearly distinguishable are the cases cited by respondents to the effect that employees sustaining injury while engaged in the performance of personal acts reasonably and necessarily contemplated by the employment come within the protection of the compensation law. For example of these cases, see Pacific Indemnity Co. v. Industrial Accident Comm., 26 Cal.2d 509, 159 P.2d 625, where 2 employees were drowned in a reservoir on the employer's premises incident to its use as a washing facility furnished by the employer for cleaning purposes after the day's farm labor; and Employers' Liability Assurance Corp. v. Industrial Accident Comm., supra, 37 Cal.App.2d 567, 99 P.2d 1089, where the employee, a household servant, was required to live on the employer's premises, received her board and room as part of her compensation, and was on call by her employer at the time of her injury, which resulted from a fall from a stool on which she was standing in her own room to see better in the mirror the hem of her dress which she was attempting to check.

It is true, of course, that there are other instances where the employee's recreational activity has been held to be so related to the employment that a resulting injury was deemed to be one arising out of and in the...