State Compensation Ins. Fund v. Industrial Acc. Commission of Cal.

• Citation: 242 P.2d 311,38 Cal.2d 659
• Court: United States State Supreme Court (California)
• Decision Date: 25 March 1952
• Parties: STATE COMPENSATION INS. FUND et al. v. INDUSTRIAL ACC. COMMISSION OF CALIFORNIA et al. S. F. 18366.

Page 311

242 P.2d 311

38 Cal.2d 659

STATE COMPENSATION INS. FUND et al. v. INDUSTRIAL ACC. COMMISSION OF CALIFORNIA et al.

S. F. 18366.

Supreme Court of California, in Bank.

March 25, 1952.

Donald Gallagher and Royle A. Carter, San Francisco, for petitioners.

Edmund J. Thomas, Jr., T. Groezinger, Robert Ball, P. H. McCarthy, Jr., F. Nason O'Hara, Herbert S. Johnson and Alfred C. Skaife, all of San Francisco, for respondents.

CARTER, Justice.

Compensation was awarded to Paul J. Hull under the Workmen's Compensation Law. The employer and his insurance carrier seek to have the award annulled.

Hull was employed as an oiler on road construction work west of Woodland, California. He had been working about three and a half days with an outfit of which William Hoover was foreman. While they were at work Hoover walked past Hull to a truck driver and directed the latter to tell Hull to help load a caterpillar. Hull received confirmation of the order by calling across to Hoover. Later Hull approached Hoover and inquired why he didn't give him a direct order instead of relaying it through the truck driver. Hoover asked, 'What's the matter, don't you like your job?' Hull said he didn't mind the job, but he wanted to be talked to as man to man. Asked if he wanted to quit, Hull said he did not, but thought 'it was a _ _ way' to give an order after walking past him face to face. According to Hoover, Hull called him a bad name. Hoover told him he'd better take off his glasses if he was going to talk like that, to which Hull replied that he didn't need to remove them, and he 'swung' at Hoover. He 'missed' but a fight ensued in which he was hit several times by Hoover. He received injuries which incapacitated him for a period of about ten days and required medical treatment and dental work.

The commission's first order was a denial of compensation based on the finding that Hull was the aggressor in the fight. A petition for rehearing was granted by the commission to reconsider whether Hull was the aggressor and if so, whether an aggressor injured in an argument arising out of the employment was entitled to an award of compensation under the workmen's compensation law of this state. In its order on rehearing the commission found that Hull sustained injury occurring in the course of and arising out of the employment in an altercation in which he was the aggressor. An award of $8.57 temporary disability and an additional award to cover the cost of medical and dental treatment followed.

The petitioners challenge the validity of the award on the ground that it is contrary to the decisions of the Industrial Accident Commission from the beginning of operation of the governing law in this state and contrary to definite intimations of this court in harmony with the decisions of the commission. The respondents concede that their present position is contrary to former decisions of the commission and of statements of this court, but they assert that 'the modern trend' in industrial accident cases is to award compensation 'irrespective of fault' and that although an aggressor may be at fault he is nevertheless entitled to compensation.

The workmen's compensation law as declared in the Constitution and statutes compels affirmance of the award. The Constitution confers upon the Legislature power to establish a system of workmen's compensation and create and enforce a liability on employers to compensate their workmen for injury sustained in the course of their employment 'irrespective of the fault of any party'. (Emphasis added.) Cal.Const. Art. XX, § 21. The only requirements of the statute are, that to be compensable, an injury must 'arise out of' and 'occur in the course of' the employment. Labor Code, § 3600. That is to say the employee must be engaged in some activity growing out of and incidental to his employment at the time he suffers an injury in order to be entitled to compensation under the workmen's compensation law. It cannot be doubted that a dispute between an employee and his superior in regard to the latter's treatment of the former in their relations as boss and worker is incidental to the employment. There is no doubt that the injury occurred in the course of the employment, for that has reference ordinarily to time and place. Hull has satisfied both aspects. The crucial issue is whether it 'arose out of' the employment, and that poses the question of whether there is a causal connection between the employment and the injury. That that is the only issue follows from the Workmen's Compensation Act which excludes fault and contributory negligence of the employee and assumption of risk as defenses. That is the express declaration of the Constitution and statutes relating to workmen's compensation. Indeed the statute compels that result inasmuch as it declares that 'serious and wilful misconduct' on the part of the employee does not defeat his recovery; it merely cuts it in half, and not even that under certain conditions (Labor Code, § 4551), thus indicating clearly that misconduct on his part is not a defense. Hence the charge of aggressor cannot be a defense, for it is nothing more than an assertion that the employee was at fault was to blame brought it on himself.

These principles, including the negation of a requirement that the employee is doing something for his employer's benefit were clearly stated by this court in the recent case of Pacific Employers Ins. Co. v. Industrial Acc. Com., 26 Cal.2d 286, 158 P.2d 9, 10, 159 A.L.R. 313, where we abandoned the long standing rule in this state that the victim of 'horseplay' was not entitled to compensation. The logic of that case is here compelling. We said: 'As grounds for annulling the award, the insurer contends that, although the applicant's injury occurred in the course of her employment, it did not arise 'out of' her employment and, accordingly, is not a compensable injury within the jurisdiction of the Industrial Accident Commission. * * * 'It is not indispensable to recovery, however, that the employee be rendering a service to his employer at the time of the injury. (Citations.) The essential prerequisite to compensation is that danger from which the injury results be one to which he is exposed as an employee in his particular employment'. * * * The petitioner concedes that if skylarking was customary and condoned by the employer * * * or if, under similar circumstances, Miss Carmel had been injured through an altercation between fellow employees over their work * * * she would be entitled to compensation. These judicial distinctions lack realism. * * * Certainly, a classification of assaults and altercations as incidental to employment, but placing accidents caused by playfulness and frolicking, in which the injured employee took no part and of which he had no knowledge, in the category of those not 'proximately caused by the employment,' has no sound basis in law or fact. * * * Considering, as we may, the propensities and tendencies of mankind and the ordinary habits of life, it must be admitted that wherever human beings congregate, either at work or at play, there is some frolicking and horseplay. * * * Accordingly, an injury sustained by a nonparticipating employee through the horseplay of fellow workers arises 'out of' and 'is proximately caused by the employment' within the meaning of section 3600 of the Labor Code.' (Emphasis added.) More recently this court dealt with the question of whether on the basis of respondeat superior an employer was liable for an assault by his employee on another workman, although he was the aggressor. In Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5, 6, the employee, following a dispute over work, threw a hammer and struck plaintiff with it. Plaintiff was another workman but not for the same employer. It was held that the assault was in the course of the employment, for it arose out of a dispute about the work being performed. We said: 'Defendant contends that Enloe was not acting in the scope of his employment when he injured plaintiff, on the grounds that the throwing of the hammer did not further defendant's interests as an employer and that Enloe could not have intended by his conduct to further such interests. It is sufficient, however, if the injury resulted from a dispute arising out of the employment. Under the provisions of section 2338 of the Civil Code a principal is liable for 'wrongful acts' of his agent committed 'in and as a part of' the principal's business. 'It is not necessary that the assault should have been made 'as a means, or for the purpose of performing the work he (the employee) was employed to do. " * * * Such associations 'include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for funmaking and emotional flareup. Work could not go on if men became automatons repressed in every natural expression. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.' Hartford Acc. & Ind. Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15.' (Emphasis added.) Certainly if for the purposes of respondeat superior an employee is acting within the scope of his employment when committing an assault arising from a dispute as to his work because it is incidental to employment, it must follow that an injury he sustains while committing the assault is also within the course of his employment and incidental to it and compensable, especially...