FIREMAN'S FUND INDEMNITY COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and ETHEL ELLIOTT, Respondents, 39 Cal. 2d 529

SPENCE, J. Petitioner seeks the annulment of an award of the respondent commission in favor of Ethel Elliott, who was injured while taking a walk after she had completed her household duties for her employer. This case presents a problem similar to that involved in Liberty Mutual Ins. Co. v. Industrial Acc. Com., S. F. No. 18590, ante, p. 512 [247 P.2d 697], this day filed: the extent to which injuries sustained in the pursuit of recreational activities may be regarded as arising out of and occurring in the course of the employment. (Lab.

Code, § 3600, subds. (b), (c).) A review of the instant record, in the light of the legal principles discussed in the companion case, compels the conclusion that the injury here must likewise be held' noncompensable. The facts are undisputed. Mrs. Elliott was employed as a cook and housekeeper in the Orinda home of Mrs. Georgie S. Hubbard. She worked eight hours per day, but after completing her daily duties, she remained on the premises, eating and sleeping there, except on her .days off. It was her custom to take short walks once or twice a day during her free time, for recreation.

She had been advised to do so by the doctor attending her employer, Mrs. Hubbard. Mrs. Elliott sustained the injuries in question on the evening of July 10, 1950. Mrs. Hubbard was ill during the day and Mrs. Elliott was required to remain in attendance upon her, so that she missed her customary midday walk. In the evening a friend of Mrs. Elliott came to the house before Mrs. Elliott had finished her work and waited for her so that they might take a walk together. Mrs. Elliott testified that her last task for the day was the depositing of some garbage in the refuse can near the driveway. She had told Mrs.

Hubbard that she intended to take a short walk, and the latter replied, “Don’t go far. You can go, but don’t go far.” Mrs. Elliott then joined her friend, and they started down the public road fronting her employer’s property. The traveled portion of the road was paved and along each side was a graveled area, but there was no curbing or sidewalks. When they had proceeded along the road some 50 feet from the Hubbard driveway, they were confronted by the headlights of an approaching automobile. Mrs. Elliott stepped off the paved portion of the road onto the graveled shoulder, slipped and fell, breaking her leg.

Upon these facts the commission found that Mrs. Elliott “sustained injury arising out of and occuring in the course of her employment” and made its award accordingly. Petitioner contends that the record does not bring the injury within the coverage of the compensation act in that it occurred off the employer’s premises while the employee was engaged during her own free time in a recreational activity entirely unassociated with the employment.

Liberal though the application of the compensation act has been in this state to encompass injuries which may reasonably be regarded as having some causal relation with the employment (Industrial Ind. Exchange v. Industrial Acc. Com., 26 Cal.2d 130, 137 [156 P.2d 926]; Lockheed Aircraft Corp. v. Industrial Acc. Com., 28 Cal.2d 756, 760 [172 P.2d 1]; Pacific Indemnity Co. v. Industrial Acc. Com., 86 Cal.App.2d 726, 729 [195 P.2d 919]), each case must be decided in the light of its own particular facts, and here petitioner properly argues that it would require “a long stretch of the imagination” to hold Mrs.

Elliott’s injury “reasonably incident to [her] employment.” (Torrey v. Industrial Acc. Com., 132 Cal.App. 303, 306 [22 P.2d 525].) “Where the contract of employment contemplates rendition of services on the employer’s premises, injuries suffered elsewhere are ordinarily noncompensable. Under such circumstances, off-the-premises activities of an employee are not incidental to the employment, unless some special connection can. be shown.

In each case, compensability depends upon the establishing of the existence of such a connection.” (Hanna, Industrial Accident Commission Practice and Procedure, p. 37.) Application of this general rule was made in Postal Telegraph-Cable Co. v. Industrial Acc.

Com., 1 Cal.2d 730 [37 P.2d 441], where an award for compensation was annulled upon evidence showing that the employee, a telegraph messenger on his way to work, was injured in a traffic collision at a time when he “was on no special errand for” his employer and “he had not yet reached his place of employment where his duties were to begin.” (P. 732.) After noting that there must be some “causal connection” between the injury and the employment to sustain a compensation award, the court continued at page 733: “When an employee is off duty the relation of employer and employee is suspended and does not reattach until the employee resumes the master’s work.

It is true that this re-entry into service may occur under special circumstances before the employee reaches the premises of the master, but this can happen only where, by contract, express or implied, the relationship attaches at such earlier time. We need not pause to give examples of this exception.” 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 present case constitutes an exception to the general rule.

But such contention overlooks the premise on which the exception is established—that the employee at the time of injury was at work and either on the employer’s premises (Whiting-Mead Commercial Co. v. Industrial Acc. Com., 178 Cal. 505 [173 P. 1105, 5 A.L.R. 1518]; F. W. Woolworth Co. v. Industrial Acc. Com., 17 Cal.2d 634 [111 P.2d 313] ; Elliott v. Industrial Acc. Com., 21 Cal.2d 281 [131 P.2d 521, 144 A.L.R. 358] ; Employers’ Liability Assur. Corp. v. Industrial Acc. Com., 37 Cal.App.2d 567 [99 P.2d 1089]) or on a business errand off the premises (Western Pac. R. R. Co. v. Industrial Acc.

Com., 193 Cal. 413, 420 [224 P. 754]). This principle of compensability is generally stated as follows: “Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, are incidental to the service rendered by such a servant, and an injury sustained in their performance arises out of and in the course of the employment.

The rule is broad enough to include the majority of an employee’s acts upon the employer’s premises, such as eating lunch, getting a drink of water, smoking tobacco where not forbidden by the employer, attending to the wants of nature, changing to or from working clothes, and many others. Such acts, although not themselves representing a rendition of service, are reasonably incidental thereto, and are considered to be acts for the mutual benefit and convenience of the employer and employee.” (Hanna, Industrial Accident Commission Practice and Procedure, p. 36; see Whiting-Mead Commercial Co. v. Industrial Acc.

Com., supra, 178 Cal. 505, 507 [173 P. 1105, 5 A.L.R. 1518].) As acts reasonably to be expected, they are regarded as taking place in the course of the employment. (Employers’ Liability Assur. Corp. v. Industrial Acc. Com., supra, 37 Cal.App.2d 567, 570-573 [99 P.2d 1089]; Western Pipe & Steel Co. v. Industrial Acc. Com., 49 Cal.App.2d 108, 111 [121 P.2d 35].) But here the employee, Mrs. Elliott, was neither at work nor on her employer’s premises when injured. Respondents argue that Mrs. Hubbard’s caution of Mrs.

Elliott not to go far permits an inference that the latter’s work for the day was not yet finished and her walk was a mere interruption in the performance of her household duties. However, such an inference cannot arise in view of Mrs. Elliott’s express testimony to the contrary—that “after [she] finished [her] work,” had “emptied the garbage,” she took her “evening walk” with her friend and sustained the injury in question. Mrs.

Hubbard’s cautionary remark suggests no more than the natural response of a sick and elderly person, experiencing a feeling of loneliness upon being informed that she is to be left without a companion for a short time. No claim is made that the walk was taken other than for Mrs. Elliott’s personal purposes. Nor is there merit to respondents’ position that since Mrs. Hubbard sanctioned Mrs. Elliott’s departure on the proposed walk, it thereby became

an act “authorized” by the contract of employment. A similar argument was advanced and rejected in the case of Arabian American Oil Co. v. Industrial Acc. Com., 94 Cal.App.2d 388 [210 P.2d 732], involving a stenographer who worked and lived within her employer’s fenced-in area surrounding an oil refinery in Saudi Arabia. She was injured when she and a co-employee were riding in a vehicle owned by the employer, traveling outside the fenced area and en route to a beach for a swim.

In annulling the compensation award, the court stated at page 392: “Petitioner contends that the injury did not arise out of or in the course of the employment, and that the injury was not proximately caused by the employment. That contention is sustained. Miss Brown [the employee] had finished her work for the day, had gone home and changed her clothing to beach apparel, had eaten dinner, left petitioner’s premises and, at the time of the accident, was on a pleasure trip. While petitioner permitted employees, after working hours, to use its motor vehicles for pleasure, it did not require them to do so.

Miss Brown had complete freedom in deciding whether she should go on a pleasure trip, in selecting an escort and driver, and in deciding where to go. The mere fact that she was riding in a vehicle owned by petitioner at the time of the accident is not sufficient to create liability under the Workmen’s Compensation Act.” Respondents finally argue that in taking her reereational walk, Mrs. Elliott was following her medical adviser’s recommendation as to a suitable exercise, and so was conditioning herself to perform better the duties of her employment.

But if such theory should be adopted as sufficient to establish the necessary causal connection with the employment, then any injury sustained by an employee in a recreational activity would be compensable. Precisely the same contention was unavailingly urged in the case of Wilson v. General Motors Corp., 298 N.Y. 468 [84 N.E.2d 781]. There the employee was injured while participating in a softball game as a member of team entered in a league consisting entirely of employees of the same employer. The games were played on the employees’ own time in a public park some distance from the employer’s plant.

In holding that neither the fact that the employer gave its permission to employees to participate in the games, and even cooperated to some extent in the program, nor the fact that such recreational activity might indirectly redound to the employer’s benefit as a health measure for the employees would authorize a compensation award, the court stated at pages 783-784: “These ball games, the record makes plain, were out-of-hours, off-the-premises, personal diversions of the men, and were not only optional with the employees but were exclusively for their own recreation and indulgence, without business advantage to the employer.

The games were neither initiated nor sponsored by the employer, in nq way connected with its affairs, and in no manner subject to its control. Even if the company had so desired, it could not have halted the ball playing or changed the program in any way. In other words, totally lacking is any basis for an inference that it controlled the activity or sought to compel or induce any employee to participate in it. . . .

Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer by improving the workers’ morale or health or by fostering employee good will.” While recognizing its duty to construe liberally the coverage of the state Workmen’s Compensation Act and the liability for injury “arising out of and in the course of” the employment, the court nevertheless concluded that on the record before it “the granting of a compensation award would not only do violence to the letter of the statute but would offend against its spirit, by penalizing employers who, without prospect of profit or benefit, co-operate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises.” (P. 784.) As the record here stands, the following facts are determinative of the noncompensability of the claim in question: Mrs.

Elliott was injured while walking on a public road as

an act of recreational diversion of her own free choice and when off-duty from her work. Such circumstances do not reasonably permit an inference of a “causal connection” between the injury and the employment in support of a compensation award. (See Liberty Mutual Ins. Co. v. Industrial Acc. Com., ante, p. 512 [247 P.2d 697].) The award is annulled. Gibson, C. J., Edmonds, J., Traynor, J., and Schauer, J., concurred.