Pattiani v. Industrial Accident Commission

250 P. 864, 199 Cal. 596, 49 A.L.R. 446, 1926 Cal. LEXIS 310

Opinions

RICHARDS, J.

The petitioner herein applied for and was granted a writ of review, whereby he sought to have annulled an order of the Industrial Accident Commission denying him compensation. The petitioner was employed during the latter portion of the year 1924 by Langley & Michaels Company of the city of San Francisco, a corporation engaged in the maintaining and operation of drugstores. In the early part of November of that year the petitioner was sent by his employers upon a business trip, in the course of which he was to visit a number of eastern cities for the purpose of investigating the subject of new equipment to be installed in his employer’s place of business in San Francisco, and to negotiate for the purchase of such equipment. In pursuance of his said instructions petitioner left San Francisco on November 2, 1924, on his way east, calling at Portland, Seattle, Minneapolis, Chicago, Cleveland, Albany, and New York, and thence returning home through New Jersey to Philadelphia, Indianapolis, St. Louis, Kansas City, Los Angeles, and finally to the place of his regular employment, San Francisco. He arrived home on the 2d of December, 1924. While in the city of New York he spent five days, during which he lived at a well-known hotel, and visited a number of business establishments within the scope of his instructions. He testified that while in said city and on or about the 17th of November, and also about three days later, he ate raw oysters at his hotel, and possibly at another place. After leaving New York and while upon his homeward trip he found himself ill, which illness continued until he arrived in San Francisco and thereafter for some time. He sought medical aid and it was finally determined that his ailment was that of typhoid fever. He applied to the Industrial Accident Commission for an award and a hearing was had upon his said application, whereupon the Commission made the following finding: “That the employment of the applicant was normally and generally in the city and county of San Francisco; . . . that upon the occasion of the alleged injury herein, the applicant was temporarily in the city of New York, by reason of a trip or visit to said locality arising out of his employment; that while upon such trip or visit at New York the applicant contracted and became ill with typhoid fever; that at the time of said visit or trip by the applicant in New York City there was prevalent in said locality an epidemic of typhoid fever; that the evidence does not establish as a fact that said epidemic was caused or aggravated by contaminated oysters; that the fact that applicant was required by his employment to visit or sojourn in a locality where there was an epidemic of disease, does not constitute a special exposure arising out of the employment, but was in fact an exposure or risk of the commonalty in general and not peculiar to or characteristic of said employment.” The Commission, basing its conclusion upon its foregoing finding as to the facts, denied an award, and also denied the petitioner’s application for a rehearing, whereupon he applied to this court for a writ of review.

The only assignable connection with typhoid infection which the applicant undertook to show at the hearing before the Commission was that of his having eaten contaminated oysters while in the city of New York. The Commission found against that contention and by so doing must be held to have negatived the conclusion that the applicant contracted said disease because of the existence of such epidemic in said city, or by any contact with such prevailing disorder.

The sole question presented in this proceeding is as to whether or not the injury of said employee is compensable in view of the findings of the Commission with respect to the nature and circumstances and origin of his said injury, which finding is supported by the evidence presented to the Commission. In the Matter of Dryden v. Lachman Bros., 8 Cal. I. A. C. 14, wherein a hearing upon application for a writ of review was denied by this court, the facts were these: The applicant for compensation, in the course of his employment and in the city in which he was employed, visited a home to take measurements for window-shades. There had been scarlatina in this home prior to such visit, but the house had been fumigated. Subsequent to such visit a girl living in the home became ill of scarlatina, as did also the said applicant several days later. Compensation was denied, the Commission saying: “It is not unreasonable to suppose that . . . applicant did contract scarlatina while at work measuring for or putting up the shades above mentioned, although he might have contracted the disease elsewhere. It is in evidence that there is at all times scarlatina in San Francisco and that the commonalty is likely to be subjected to contagion from that source. ... It is certain that compensation could not be allowed for an injury sustained in the form of a contagious or infectious disease where the risk of such contagion or infection was a risk of the commonalty. There must be as a justification for an award for compensation for such an injury a very special exposure beyond that to which the commonalty is subjected. Of course, the commonalty did not have access to No. 314 Locust Street, San Francisco, but the risk of infection from that source was a risk participated in by every person who for any reason did enter that home during the interim between the two periods of quarantine, and therefore and for that reason the risk was not a very special one appertaining to the industry in which applicant was engaged.” In denying the application for a writ of review in the above matter this court apparently approved the conclusion of the Commission that, in order to the recovery of compensation for an injury arising out of the contraction of an infectious or contagious disorder while engaged in the performance of the duties of the employee in the place of his regular employment, “there must be as a justification for an award for compensation for such an injury a very special exposure beyond that to which the commonalty is subjected.” In the Matter of Shepherd v. A. Schilling & Co., 11 Cal. I. A. C. 57, the husband of the applicant for an award was employed as a sales manager of his employer, the principal place of business of which was the city of Oakland. In the course of his employment, and on November 4, 1922, he left Oakland, traveling through the northwest and thence to Denver and other towns in its region, and thence to Albuquerque, at which latter place smallpox developed, and from its effects he died on December 13, 1922. The evidence before the Commission showed that a smallpox epidemic was prevalent in Denver from September 1, 1922, into December, 1922, and that the deceased, who was in Denver part of that period, interviewed between fifty and a hundred people. It is a fair intendment from the findings of the Commission that the deceased probably contracted said disease while in Denver; but there was neither allegation nor proof before the Commission that he was exposed there to any extent beyond that of the general public, nor was there any evidence to the effect that any of the people interviewed were afflicted with said disease. The Commission held that “the evidence was insufficient to establish that the employment caused an exposure in excess of that of the commonalty, and that in the absence of such a showing of special exposure the illness and death could not be said to have been proximately caused by injury arising out of the employment.” The effect of the denial by this court of a writ of review in each of the foregoing proceedings is that of holding that in order to a recovery of an award by an employee who, in the course of the performance of his duties as such, whether" in the immediate place of his employment or in whatever place he may be in pursuance of his employer’s directions, contracts a contagious or infectious disorder, he must, in order to such recovery, establish the fact that he was subjected to some special exposure in excess of that of the commonalty, and that in the absence of such showing of special exposure the illness or death of the employee cannot be said to have been proximately caused by injury arising out of his employment. In the case of San Francisco v. Industrial Accident Com., 183 Cal. 273 [191 Pac. 26], the subject of occupational diseases or disorders, and also of those diseases and disorders which are not occupational but are the result of exposure to contagious or infectious diseases, is given exhaustive consideration by this court, and it is there held that both classes of such injuries come within the provisions of the Workmen’s Compensation Act. (Stats. 1917, p. 831.) The injury which the husband of the applicant for an award in that ease sustained was that of his contraction of influenza in the course of his employment, and from which he died. The contention of the respondent in that case was that the disease contracted was one in respect to which an epidemic was prevalent in the place of the deceased’s employment at the time and that his risk of contagion was no greater than that of the commonalty and hence that his injury was not compensable. It was pointed out, however, in that case that the employee at the time he contracted such disorder was engaged in the occupation of a nurse, and that in the course of his duties as such nurse he had been required to handle and had been exposed to at least twelve developed cases of influenza, and that his exposure, because of his work, was far greater than that of the average person, the preponderance of the medical testimony being that the employee contracted the disease as a result of his peculiar exposure to it incidental to his employment. This court in affirming the award in that proceeding based its conclusion not upon the proven fact that an epidemic of influenza was prevalent in the place of his employment, but upon the fact of his peculiar exposure thereto. In so doing the court reviewed with approval the ease of United Paper Board Co. v. Lewis, 65 Ind. App. 356 [117 N. E. 276, 277], wherein the subject of industrial or occupational diseases and also of those which are the result of contagious or infectious disorders was given exhaustive consideration, with much citation of authority, and wherein that court held that as to the latter class of disorders the- injury arising therefrom was com pensable when “contracted as a direct result of unusual circumstances connected therewith.” In the ease of Larson v. Industrial Accident Com., 193 Cal. 406 [224 Pac. 744], while the injury for which recovery was sought in that case did not arise out of a contagious or infectious disease, but did arise- out of the fact that the employee was exposed to an injury in the place where he was required by his employer to be, this court said: “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. There must be a causal connection between the employment and the injury which had its origin in a risk connected with the employment and flowed from that source as a rational and natural consequence.” In the Matter of Miller v. Simon-Newman Co. et al., wherein this court denied a writ of review and by so doing affirmed the decision of the Industrial Accident Commission rendered December 21, 1925, the facts were that the injury to the applicant for an award in that case arose out of his special exposure to the bites of mosquitoes while sleeping in a bunkhouse infested with mosquitoes and by having been bitten by them, his infection with the disorder from which he suffered being directly traceable to the mosquito bites, and the decision of the Commission granting him an award being based upon his special exposure in that regard. It will thus be seen that this court has not thus far in its recent decisions seen fit to broaden the rule adopted by it in its approval of the action of the Commission in the cases of Cry den v. Lachman Bros, and Shepherd v. A. Schilling & Co., supra. It has not been made to appear to this court that its action and attitude in so doing is at variance with the rule which has been declared in other jurisdictions, wherein the statutes relating to workmen’s compensation are similar to our own. Among these may be cited Brodin’s Case, 124 Me. 162 [126 Atl. 829], wherein an employee while working for a highway commission, and required to be in a construction camp, drank water supplied by the employer, and which was shown to be infected with typhoid germs, and as a direct result thereof contracted typhoid fever. It was held that the employee, upon proof of such special exposure, was entitled to compensation on the. authority of Vennen v. New Dells Lumber Co., 161 Wis. 370 [Ann. Cas. 1918B, 293, L. R. A. 1916A, 273, 154 N. W. 640], and Wasmuth etc. Co. v. Karst, 77 Ind. App. 279 [133 N. E. 609], in each of which cases the recovery allowed and proved was predicated upon the direct connection between the infection and the injury which the evidence before the Commission disclosed. In the instant ease, however, no such direct connection between the employee and his infection with the disease of typhoid was shown. On the contrary, his attempted proof of such connection was negatived by the Commission in its finding that the evidence did not establish the fact that the epidemic of typhoid in New York was caused or aggravated by contaminated oysters. No other direct contact between the petitioner herein and the existing epidemic of typhoid in New York during the brief period of his visit there being shown, we are of the opinion that the Commission was correct in holding that the evidence before it was insufficient to show a special exposure arising out of the employment, and that the mere fact that there was an epidemic of typhoid fever in said city during the period of the petitioner’s visit there constituted an exposure or risk of the commonalty in general and was not peculiar to or characteristic of his employment, and for that reason compensation to the applicant was properly denied.

The attention of this court has been called to the decision of the Commission in the matter of Biscailuz v. County of Los Angeles, 11 Cal. I. A. C. 121, wherein an award was made to the applicant therefor upon a showing that he had been sent into a district in the tropics wherein a contagious fever was raging, upon a mission peculiar to his special employment. It appeared, however,' in that proceeding that the employer, through its officials, was fully aware of the prevalence of such contagious disorder in the place to which it sent its. employee, and in the face of such knowledge directed its employee to go to said place. There were other peculiar circumstances connected with that proceeding which might have sufficed to support the award made therein. However, that matter was not brought to this court upon application for a writ of review.

In arriving at our conclusion in the instant case we are not to be understood as announcing a rule which might be applicable to the case wherein an employer directs his employee to go to a place wherein, within the knowledge of the employer, there is prevalent an infectious or contagions disease. There was no such showing made in the case before us.

The order of the Commission is affirmed.

Shenk, J., Waste, C. J., Curtis, J., and Finlayson, J., concurred.