McAllister v. Workmen's Compensation Appeals Bd.

• Decision Date: 04 October 1968
• Docket Number: S.F. 22601
• Citation: 445 P.2d 313,69 Cal.2d 408,71 Cal.Rptr. 697
• Court: California Supreme Court
• Parties: , 445 P.2d 313 Myrtle McALLISTER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and City and County of San Francisco, Respondents.

Page 697

71 Cal.Rptr. 697

69 Cal.2d 408, 445 P.2d 313

Myrtle McALLISTER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and City and County of San Francisco, Respondents.

S.F. 22601.

Supreme Court of California In Bank.

Oct. 4, 1968.

Tormey, Cotchett & Lev, Tormey & Cotchett and Joseph W. Cotchett, San Mateo, for petitioner.

Werchick & Werchick and Arne Werchick, San Francisco, as amici curiae on behalf of petitioner.

Everett A. Corten, Marcel L. Gunther, San Francisco, Thomas M. O'Connor, City Atty., and Raymond E. Agosti, Deputy City Atty., for respondents.

TOBRINER, Justice.

Petitioner seeks review of the appeals board's decision after reconsideration in which the board held that the death of petitioner's husband did not arise out of his employment. We conclude that, since the board's decision lacks the support of substantial evidence and involves errors of law, it cannot stand.

Petitioner's husband, Arthur McAllister, worked for the San Francisco Fire Department for 32 years beginning in 1934. On October 31, 1966, Mr. McAllister died of lung cancer. Subsequently Mrs. McAllister filed this application for death benefits and burial expenses, alleging that smoke inhalation during the course of decedent's employment had caused his death.

At the hearing before a trial referee, petitioner testified that the decedent had worked as a fireman during the period in question, that he had suffered terrible coughing spells, and that he had complained about the smoke that he had inhaled at the fires. Petitioner called as her witness one Jerome Mahoney, a fireman who had worked with decedent; Mahoney testified as to the frequency and nature of the fires which decedent and he had fought together. Mahoney further stated that he had seen decedent affected by smoke many times and that he had observed him being carried out of a burning building in a semiconscious condition. Dr. Mortimer Benioff, also called by petitioner, stated that the referee could reasonably assume that the fire smoke which the decedent had inhaled had caused his death. Respondent offered no evidence.

The referee found in favor of petitioner. Subsequently the respondent City and County of San Francisco filed a petition for reconsideration with the appeals board. The board granted the petition and annulled the referee's award on the ground that the evidence had not shown that decedent's illness arose out of and in the course of his employment. The board concluded that the record did not disclose sufficient evidence as to the toxicity of the smoke inhaled or as to the amount of decedent's exposure to smoke, that a letter written by Dr. Benioff failed to support petitioner's contentions, and that petitioner had not adduced a satisfactory and detailed showing of the manner in which smoke inhalation may cause lung cancer.

We hold that the uncontradicted evidence in this case compelled the board to rule in petitioner's favor as to both toxicity and exposure, that Dr. Benioff's letter did possess evidentiary value, and that the exact mechanism of industrial causation need not be shown. We reject, as inconsistent with our statements on contributory causes, respondents' contention that the application must be denied because decedent smoked cigarettes.

1. Petitioner's uncontradicted evidence established the toxicity of the smoke.

The board based its conclusion in large part on the alleged inadmissibility, or ineffectuality, of Dr. Benioff's belief in a statistical correlation between lung cancer ¹ and the specific pollutants which firemen would normally inhale. The board noted Dr. Benioff's expert testimony as to the statistical correlation between air pollution (or cigarette smoke) and lung disease. The board reasoned, however, that petitioner had introduced no 'convincing' evidence to show that the smoke that firemen commonly inhale contains the same substances as those in cigarette smoke or in polluted air. It therefore concluded that Dr. Benioff's expert opinion as to the industrial causation depended upon facts not established in the record.

The record did contain evidence that the smoke that firemen inhale contains the same substances as in air pollution or cigarette smoke. Dr. Benioff testified that smoke from burning tar or creosote 'may well' contain the same type of carcinogen found in cigarette smoke, and petitioner introduced testimony by Fireman Mahoney that the fires which decedent fought involved creosote. Similarly, petitioner introduced expert opinion by a Dr. Prindle to demonstrate that many of the carcinogens found in 'air pollution' are 'produced by almost any type of incomplete combustion of almost any product.' ² Respondent City and County of San Francisco, on the other hand, introduced no evidence whatever to suggest that the smoke inhaled by firemen is always or usually benign.

We examine this evidence in the light of our holding that the applicant need only establish the reasonable probability of industrial causation. ³ (Bethlehem Steel Co. v. Industrial Acc. Comm. (1943) 21 Cal.2d 742, 745, 135 P.2d 153; Pacific Emp. Ins. Co. v. Industrial Acc. Comm. (1942) 19 Cal.2d 622, 629, 122 P.2d 570, 141 A.L.R. 798.)

This case presents the problem of how to apply the well established 'substantial evidence rule' to a case in which the prevailing party has introduced no evidence. We recognize that self-consistent testimony introduced by one party alone can raise factual questions: (a) Is the testimony and other evidence introduced to be believed? (b) What did the person whose statements or writings are introduced intend as their meanings? (c) What are the proper inferences of fact to be drawn from the testimony and other evidence? We believe the policy basis of the substantial evidence rule implies that we should resolve these questions in favor of the board wherever there is a substantial reason for doing so. Of course, as indicated in Wilhelm v. Workmen's Comp. App. Bd. (1967) 255 A.C.A. 50, 51, 53, 62 Cal.Rptr. 829, the board must accept as true the intended meaning of testimony both uncontradicted and unimpeached.

In this case, however, even the indulgence of the substantial evidence rule will not permit us to uphold the board's decision. We note at the outset that no effort was ever made--either by way of allegation or evidence--to question the honesty or competence of any of petitioner's witnesses. ⁴ Accordingly we, as the board, in view of the City's failure to introduce any contradictory evidence, must assume the accuracy of the testimony. Likewise, the meaning of the testimony, and the inferences to be drawn from it, cannot be disputed.

Dr. Benioff stated in writing that it was 'probable' that the smoke inhaled contained carcinogens, and he testified that the carcinogens in cigarette smoke 'may well' be in tar or creosote, which Fireman Mahoney's undisputed testimony established as being in most buildings. ⁵ We cannot conjure up a plausible reason to believe the degree of likelihood intended by 'probable' and 'may well' is less than that in the requirement of 'reasonable probability,' especially in view of Dr. Benioff's testimony that an inference of industrial causation would be a reasonable one.

The absence of testimony as to whether the smoke which firemen inhale contains incompletely oxidized materials does not lessen the import of Dr. Prindle's views. Especially in the absence of conflicting testimony, we think that the petitioner's offered evidence that firemen inhale smoke sufficed. Matters of scientific certainty are subject to judicial notice. (Witkin, Cal.Evidence (1966) § 177; McBaine, Cal.Evidence Manual (1960) § 6.) Thus, in Coughlin v. Great Western Power Co. (1920) 183 Cal. 548, 551, 191 P. 920, we took judicial notice of the fact that a wire carrying excessive voltage will jump one inch to a grounded wire or 12 inches to a grounded metal beam rather than jump 22 inches to a workman's hand. (To the same effect: People v. Brotherton (1966) 239 Cal.App.2d 195, 205, 48 Cal.Rptr. 513; Agnew v. City of Los Angeles (1950) 97 Cal.App.2d 557, 218 P.2d 66; Cantrell v. Board of Supervisors (1948) 87 Cal.App.2d 471, 477, 197 P.2d 218; Truck Ins. Exchange v. Industrial Acc. Comm. (1946) 77 Cal.App.2d 461, 175 P.2d 884. Markulics v. Maico, Inc. (1946) 74 Cal.App.2d 66, 69, 168 P.2d 35.)

In the case before us we think that both common knowledge and ordinary language support our recognition that smoke is visible, and that, as a matter beyond scientific dispute, smoke is visible precisely because it contains incompletely oxidized materials. Thus Webster's International Dictionary (2d ed.) defines 'smoke' as: 'The gaseous products of burning organic materials * * * when rendered visible by the presence of small particles of carbon * * *. Smoke is thus always the result of imperfect combustion.' And the Encyclopaedia Britannica comments, 'If complete combustion were always attainable no fuel would emit smoke, the final products in such an ideal case being limited to carbon dioxide, water vapour, and free nitrogen, all quite innocuous, and invisible unless the water vapour condenses to a cloud of steam.' (20 Encyclopaedia Britannica (1954) p. 839.) The remote possibility that in an unusual case something other than incompletely oxidized materials renders the gases from a fire visible, does not detract from our reasoning. At best it means that the City would bear the burden of attempting to establish that all the 'smoke' which decedent inhaled was of this unusual variety.

2. Petitioner's uncontradicted evidence established decedent's exposure to smoke.

The board suggested as a further reason for denying the application its view that the evidence of decedent's exposure to smoke was 'singularly scanty.' We find this argument difficult to understand and impossible to uphold.

The board may be suggesting that the fact that a man spent 32 years fighting fires, often without a gas mask, presents no reason to...