*1 No. 29913. In Bank. Feb. [L.A. 1972.] MATHEWS, Petitioner, v.
JESSIE BOARD, WORKMEN'S APPEALS COMPENSATION al., CONTRACTORS, INC., WESTERN et Respondents.
Counsel & Garrett
Richman and Thomas J. for Petitioner. Toohey Smith, Jr., John C. as Curiae Amicus behalf of Petitioner. on Pedrin, Hvolboll, A. Samuelsen, Bolson, Gabriel L. Lionel K. Rupert Sipos, Whitehead Benes & and Charles C. for Respondents. Ringwalt Hanna & and L. Curiae Brophy Warren Hanna as Amici on behalf of Respondents.
Opinion SULLIVAN, J. As aresult of wounds received at work in with a fight Halfred died C. Mathews on December 1969. His widow’s co-employee, of the Compensation for review the decision Workmen’s Appeals peition the (Board) deceptively simple Board us presents denying compensation an which bars whether subdivision (g),1 Labor Code question benefits, consonant with section from is aggressor” “initial physical the We have concluded the state XX.of Constitution.2 article California right the conditioning does not Legislature Constitution prohibit provides: “Liability pro 3600 of the Code for the Section Labor division, any by any liability person except vided this in lieu of other whatsoever regard 3706, shall, negligence, against exist Section without provided any injury arising of and in employer by employees for his out the course sustained injury proximately any and employment employee of the for the death if death, following those cases where the conditions concur: causes Where, “(a) injury, employee at thе both and the employer time of the subject compensation provisions of this division. Where, “(b) growing injury, employee performing at the service is time acting employment of and incidental to course of his out within the employment. “(c) injury caused either proximately by employment, Where the with negligence. without “(d) injury injured employee. Where is not caused the intoxication of the “ (e) injury employee intentionally Where the is not self-inflicted. “(f) willfully deliberately has not caused his death. Where own injured “(g) does not arise out altercation in which the Where (Italics physical aggressor.” added.) is the initial Hereafter, context, required unless otherwise section references will be to the Code. Labor part: 21 of article XX of the California Constitution provides 2 Section relevant by any with hereby expressly plenary power, vested unlimited “The Constitution, create, complete system workmen’s provision of this and enforce a compensation, by appropriate legislation, and in to create and that behalf enforce compensate part any any or all of their persons on or all workmen disability, sustained dependents and their death incurred or any irrespective employment, in the of their said workmen party. course fault of adequate complete system A includes of workmen’s comfort, general safety health and all welfare workmen for those *6 relieving upon for extent of from the con dependent support them any or sustained workmen in the course sequences of death incurred any party; provision of the fault of also full for employment, irrespective of their medical, safety provision surgical, securing places employment; full for such requisite relieve to cure and from the hospital and other remedial treatment as coverage against adequate injury; full for provision effects of such insurance coverage compensation; provision regulating full for such insurance pay to in or furnish including management Compensa and of a State aspects, all its the establishment Fund; payment securing compen otherwise provision full for Insurance tion sation; provision vesting jurisdiction in an adminis power, authority full and and any governmental dispute to determine body requisite with all functions trative arising legislation, the administration of such under end that such matter inexpensively, accomplish justice expeditiously, legislation in all cases shall substantial character; expressly all de of which matters without incumbrance State, binding departments of public upon of this all policy to be the social clared 1918; added.) (As government.” italics amended November the State refer of article XX of all references to section 21 shall to that section Hereafter California Constitution. intentional the absence of wilful misconduct or other we that (g), find section subdivision wrongdoing. Consequently, constitutional and that the Board did not err to award in failing compensa- case. tion in this unfortunate rise to this gave may facts proceeding quickly Contractors,
summarized. Inc. as a Mathews was Western employed On truck driver at the Castaic Los heavy-duty County. Dam site in Angeles 30, 1969, site had truck at the dam Mathews his September just stopped he Cedillo, was when who was in charge directing Marcus approached told Mathews incoming trucks Cedillo unloading. appropriate places that his truck was traffic and would have to be moved. Mathews blocking with obscene remark and Cedillo replied gesture; similarly. responded Mathews climbed down out of the cab of truck and began walking his Cedillo, toward Cedillo his shorter with fists clenched at sides. who was his Mathews, than lighter two rocks and began away. picked up backing hesitated, foot, Both men and Cedillo warn- drew line in the dirt with Mathews not to ing cross it. This action fueled Mathews’ apparently anger. He сrossed the line and advanced toward one Cedillo. Cedilk> threw rock Mathews, ducked, hat, who lost past his hard toward Cedillo to lunged or strike grab him. Cedillo struck Mathews in the forehead with the second rock; Mathews fell lay unconscious.
As a result of received, thus died injuries Mathews two months later without widow, ever having consciousness. His Jessie regained Mathews sought workmen’s (applicant), death benefits. adduced evidence was
After at which holding hearing foregoing evi- referee determined that was legal argument “[t]he presented, Mathews was that Halfred C. dence leads to the conclusion inescapable he involved an altercation in which on September benefits, Nevertheless, full death initial the referee awarded aggressor.” section because it denied holding subdivision unconstitutional (g), on basis of fault “compensation injured employee.” reconsideration, the Board found that the fell within Upon However, that the section was terms of subdivision it held (g). and ordered take constitutional nothing.” “applicant *7 decision. She con- of review this annulling for writ Applicant petitioned the initial tends that the Board erred in that her husband was finding physi- argues also cal in the which caused his death. She aggressor altercation if the she is entitled compensation Bоard’s finding even is proper, 3600, unconstitutional. because subdivision is (g), section 3600, Section subdivision bars when two conditions only (g), recovery First, for which workmen’s sought present. injury Second, be must “arise out an altercation.” must injured employee the “initial in that altercation. Section 3202 aggressor” physical us to construe Labor enjoins the workmen’s compensation provisions Code “with the their benefits for the liberally extending protec purpose tion of in the course of their injured persons employment.” Consequently, 3600, of subdivision of section (g) deny compensation (See so Frue injured, must construed. persons narrowly strictly v. Corp. Comp. App. (1968) 569, Bd. Workmen's 68 Cal.2d 577 [68 hauf 236].) 440 P.2d Cal.Rptr. altercation,”
To “arise out of an as section subdi required vision result (g), must from an between two or more exchange characterized and a persons animosity willingness atmosphere inflict harm. An bodily distinguishable altercation from “horseplay” neither of “skylarking,” which involves such either animosity, although may result (Litzmann App. in bodily Comp. harm. v. Workmen's Bd. 731]; Argonaut Ins. v. 209-210 Co. Cal.App.2d Cal.Rptr. [71 Comp. App. (Helm) (1967) Workmen's Bd. 682-683 247 Cal.App.2d 810].) Cal.Rptr. [55 case,
In this the record contains the Board’s evidence ample support that Mathews’ out finding arose of an altercation. It injuries clearly appears that Cedillo and Mathews were not in a frolic. On the con- engaged joint other; each trary, intended to inflict obviously harm physical Cedillo was successful. Mathews’ death followed from the thus sustained.
The second condition subdivision more (g), presents it difficulty; us determine what of conduct the requires type intended to when it denied discourage to an “initial physical out, difficulties As Larson has one of the aggressor.” pointed practical that, to bar an “the from benefits is fact attempting aggressor homely long over, after a almost is often to determine who quarrel impossible really Larson, (1 (1968 started it.”3 ed.) Workmen’s Law Compensation 11.15(c), 159.) subdivision (g), Section p. necessity “imposes one verbal, overt act out of series of hostile selecting psychological, that, acts one caused the physical purposes, (Id.) and elicited the ultimate injury.” quarrel use of the word Legislature’s indicates that it was “physical” pri- 3 Indeed, in this case the witnesses this altercation have achieved a rare uni formity in their perception of the event. *8 concerned with the increased risk of which arises when marily a an of hostile words and exchange gestures moves from quarrel nonviolent Thus, one not “initial to a blows. trading physical physical so as he his long arguments, confines aggressor” antagonism epithets, Instead, obscenities or is one insults. “initial aggressor” physical a who first conduct which reasonable man would engages in physical “ ‘real, to be a .’” threat of harm. . . perceive bodily present apparent (Briglia v. Industrial Accident Commission (1962) 27 Cal.Comp.Cases 217, 218.)4 the issue is
Although not free from nevertheless the record difficulty, discloses substantial evidence of the Board’s conclusion that in support Mathews was the initial In the context of altercation aggressor. his physical Cedillo, with Mathews’ conduct in his truck and advancing leaving Cedillo with held at clenched fists his sides definitely menacing. appeared Since Mathews was several inches taller and 30 heavier than pounds Cedillo, a reasonable man in Cedillo’s have considered might position real, Mathews’ acts to be a threat of harm. present bodily apparent that argues Mathews could not have the “initial been Applicant physical However, aggressor” because he did not “throw first punch.” the Board has held that is not that be a necessary there properly “[i]t one battery before can be deemed a aggressor” (Rosenthal v. physical “ Wong (1964) 103, 104); contact Cal.Comp.Cases ‘bodily ... ” Commission, not the significant (Briglia factor.’ Industrial Accident v.
supra, 217, 218.) He who Cal.Comp.Cases conduct first by physical places in reasonable fear of is the “initial opponent bodily harm physi harm; cal His act need not aggressor.” cause a actually throwing physical a punch shooting gun not Under circum necessary. appropriate stances, a fist clenching be sufficient to gun may aiming convey real, threat of present apparent physical injury. also that contends even if Mathews became an “initial
Applicant on Cedillo clenched aggressor” by advancing fists, with Cedillo’s physical later, use of excessive unjustified force in the attack changed repelling situation, However, the bar to removing recovery. section applicant’s 3600, subdivision does not (g), thesis that simply support applicant’s reject suggestion defining 4 We proscribed conduct (g), governed by defining subdivision Had the we should be the rules of criminal law assault. rules, adopt surely intended those would have used the Although technical terms of the law criminal rather than the it chose. words there may highly developed body assault, be a covering designed of law criminal it was problems meet different policies. effectuate different Its technical rules and mechanically distinctions should not be applied to workmen’s law.
the “initial shifts from one automatically label aggressor” disputаnt physical bars force. Rather the section whenever uses excessive other either him who introduces to the “initial to aggressor,” compensation physical first confrontation, the creating into the thus violence element physical the risk of Later acts of his increase unjustifiably injury. opponent, violence, even level of do not absolve the initial aggressor. Consequently, attack, was, excessive Mathews if Cedillo used force in Mathews’ repelling circumstances, the Under these remained, initial aggressor. physical that subdivision correctly (g), the Board concluded section precludes death any award of benefits applicant. failed, next that she
Her first asserts argument having applicant section is uncon- (g) entitled to because subdivision compensation section XX the California She out that article stitutional. points a to create gives system Constitution Legislature power complete of the fault of workmen’s benefits “irrespective compensation providing “ that ‘fault’ connotes volitional as well any Applicant argues party.” from as that section 21 negligent activity” Legislature prohibits the absence fault. Since on conditioning right wilfully subdivision denies to those who (g), confrontations, a create that it involves violent she contends implicitly argument, “fault” criterion section 21. of her In prohibited support Comp. v. (Hull) State Fund Ind. Com. she cites Ins. Acc. 311], we
Cal.2d P.2d in which abolished the created judicially 659 [242 aggressor defense. a examination argument
While has surface applicant’s plausibility, workmen’s of the behind the laws history legislative section 21 of article XX demonstrates that rests contention upon a basic As dis following misconstruction of the Constitution. demonstrates, cussion fault of the use of the phrase “irrespective intended in section was party” only give Legislature power negligence; law tort benefits common grant concepts unhampered it has been construed from increas never prohibiting wrong or even based ing, eliminating awards decreasing doing aof party.
At clamor arose for reform of the turn of last century, public By at work. that time laws received relating recovery injuries had with States combined industrialization in United increasing tort create an unfortunate of common law doctrines5 to development law, heavy showing 5 To at burden recover common had the injuries Furthermore-, negligence. de employer’s his from resulted his his claim injuries negligence, if that of his part feated resulted in from his own were denied all for which workmen number industrial injuries large 5.20, 37-39.) re- (See Larson, supra, California’s first recovery. pp. *10 rule the fellow-servant to this tide of was to make sponse public opinion acci- of in certain of types and the risk defense inapplicable assumption 1907, 119-120; Hanna, 97, Cal. Law of (Stats. Employee ch. dents. pp. 1.03[3][c], (2d 1970) ed. Injuries pp. § Workmen’s Compensation 1-15.) 1911, revisions, however, California
Such minor insufficient. In proved states a true workmen’s number of joined growing adopting rapidly 1911, 796), (Stats. 399, legis- based similar act ch. on compensation p. 1-18—1-23; Hanna, (See 1.04, enacted in supra, lation Germany. pp. § Larson, 5.10, supra, 33-36.) The commonly California legislation, § pp. Act, of risk defense known the abolished the Roseberry assumption and the fellow-servant industrial involving injuries, rule cases (Stats. modified the defense in such cases. greatly contributory negligence ch. 796.) l,p. § addition, the Act work established a of Roseberry system In voluntary men’s em of for his compensation. liability participating employer injuries was no law doctrines. ployee’s longer tort governed by common Rather, the act “without to liability for imposed regard compensation for negligence” injuries by sustained while accidentally employee “per service forming out of and incidental to” their growing employment. (Stats. 796-797.)6 However, ch. the was pp. employer Also, it co-employees. assumed by employment, was held that accepting often the had worker the employment injuries arising normal risks of and could for not recover (Western employee’s recovery. therefrom. Court costs were a further deterrent to an Indemnity Pillsbury 398].) Co. v. 170 Cal. 692-694 P. [151 Act, 3 of Roseberry 6 Section the “Liability stated: for the compensation herein for, provided any whatsoever, shall, regard after in lieu of other without to negligence, by against employer any personal exist injury accidentally sustained employees, death, injury his and for death if his the shall approximately cause following those cases where the conditions of compensation concur: Where, “(1) accident, the at the employer time'of both the and employee are subject the provisions according succeeding act this the sections hereof. Where, “(2) accident, at the time of the the employee performing grow- service ing or course of his out employment acting incidental duty his within the line of his employment as such. “(3) injury accident, Where the approximately by caused [«c] either with or by negligence, employee. without and is not caused the so misconduct wilful compensation personal “And where such any injury conditions exist fоr or death, this right to the recovery compensation pursuant such to the provisions of act, thereof, amendatory remedy against acts exclusive shall when, death, employer injury for such except injury or was caused gross personal negligence personal or wilful employer, misconduct any designed protection reason of violation statute of employees for the injury, bodily employee may, at his option, either claim under this was caused employee’s if the liable for not from the em- resulted (Id.) the wilful Where own misconduct. misconduct, of or violation gross negligence, personal ployer’s from bodily injury, for the statute designed protection com- statutory choose between was injured employee permitted the volun- (Id.) Under damages. and a common law action pensation regard negli- available without therefore, was tary plan, denied to an employee but of either still gence employee, employer of wilful misconduct. guilty effective, 21 of Act became Roseberry
One after month *11 The added to the Constitution. XX the voters and by article was approved legislation “The legislature may by new appropriate section provided: all to a the compensate create enforce on liаbility employers part the course incurred said by their for any injury employees employees (Italics irrespective party.” the either of their employment fault of added.) under the voluntary had chosen coverage plan
Because few employers the Act, exercised the in 1913 Roseberry established the by enacted a article XX and section 21 of conferred by power Hanna, supra, (See 2 scheme of workmen’s compensation. compulsory insur- 1.04[3], 1-23.) titled the “workmen’s compensation, p. Officially § act was 1, 279), the (Stats. ch. new ance and act” safety p. § workmen’s Aside from changing known as the Act. Boynton popularly Act to a the system, Boynton from voluntary compulsory compensation Commission, extended Accident the of the Industrial strengthened powers insurers, the commission and gave power control over greater compensation for regulations safety employers. prescribe of section Act forward the 12 of the carried Boynton provisions Section therefor; act, liability damages all other cases the an action for maintain succeeding act employer the sections of this the shall be the same as if this and subject passed, provisions preceding of the sections had not been but shall be 399", 3, 796-797.) (Italics added.) (Stats. pp. § act.” ch. this “(a) Boynton provided: Liability for the compensation 12 of the Act 7 Section shall, act, whatsoever, regard by any liability without provided this in lieu of other negligence, by against employer any personal injury sustained his em exist arising and for the by employment accident out of and in the course of the ployees death, employee proximately such if cause in those cases death the shall following concur: compensation where the conditions accident, “(1) Where, employer are sub- employee at the time of the both ject compensation of this act. accident, “(2) Where, grow- employee is performing at the time of service acting ing within the course of his employment out of and incidental to his employment as such. accident, “(3) either with or without proximately Where the caused Act, 3 of the Roseberry “without imposing regard An negligence.” his own wilful misconduct employee injured by was still Act, denied As under Roseberry compensation. choose action rather than benefits permitted damage statutory
if his injuries were caused or wilful employer’s gross negligence misconduct, life, limb, “a wilful indicating disregard or bodily addition, safety In 12 contained new employees.” section language preсluding those their own intoxication. injured by In the Legislature revised the substantially law to meet existing had which arisen under problems Act. The Boynton “workmen’s insurance and (Stats, act of compensation, safety 1917” ch. 833) the full evolution of the workmen’s p. represented system. behind the statute and policy its were goals summarized in n.8
its first been has margi reproduced negligence, and is not so caused intoxication misconduct injured employee. “(b) exist, Where right such of compensation conditions to recover such *12 compensation pursuant act, to the provisions of this be shall the remedy exclusive death, against employer the injury for the except or that injury when the was caused by gross employer’s the negligence or wilful misconduct and such act or failure to causing act injury personal such was the act or failure part to act on the of the em- himself, ployer or employer if the abe partnership part on the of one of partners, the corporation,
or if part thereof, on the of an elective officer or officers and such life, limb, act or failure disregard to act indicated a wilful of the bodily safety of employees, any injured may, such employee at option, his either compen- claim sation under act this at dаmages. maintain an action law for “(c) In all other concur, cases where the compensation conditions of do not the liability employer of the shall be the (Italics same as if act passed.” this had not been added.) (Stats. 1913, 176, 12, 283-284.) § ch. pp. 8 Section of the compensation, workmen’s safety insurance act and of pro vided: “This act every and each part and expression police thereof is an of the power and is also intended to make apply system effective and to a complete of workmen’s compensation section provisions the of section and twenty seventeen one-half of article twenty-one twenty of article of the of the constitution State of California. A complete system of adequate workmen’s includes provision for the comfort, health, safety general any welfare of and all employees and those de pendent upon support them for to the relieving extent of from the consequences any injury by employees incurred in the irrespective course of their employment, any party; the also full provision securing safety for places employ fault of ment, medical, provision surgical, full for such hospital and other remedial treatment requisite as is adequate to cure and relieve from the injury, effects of provision such full for coverage against insurance liability the to pay compensation, or furnish full regulating provision for coverage such aspects insurance all including its management establishment and vision fund, of a state compensation insurance pro full securing for payment otherwise of compensation, provision and full for vesting authority power, jurisdiction body in an administrative with all the governmental requisite functions any arising to determine matter under this act to the end cases accomplish justice administration this act shall substantial in all expeditiously, character; inexpensively and any without incumbrance of all of form the amended act9 continued in 6 of
Section Act. the Roseberry 3 of Act and section 12 of the Boynton of section “without on was employers imposed liability Again com- Nevertheless, deny act continued the 1917 regard negligence.” and, intoxication own from the resulting employee’s for injuries pensation in- injury where time, benefits statutory also barred for the first no misconduct wilful an Although employee’s self-inflicted. tentionally his award by it reduced percent. his recovery, longer totally precluded and wilful miscon- his serious by injured employer’s Similarly, employee action, by but his award was increased a damage duct was not permitted 50 percent. public to be the social expressly declared are contained in this section
which matters (Italics state, government.” state binding upon departments all policy of this 832-833.) (Stats. 1917, added.) pp. ch. act, any by in lieu of (a) compensation provided this Liability for the 6. 9 “Sec. negligence, shall, regard without exist any person, whatsoever other arising out of and in injury by employees his against any sustained employer injury employee if the the death of such employment and for the course of the shall compensation death, following conditions of cases where the in those proximately cause concur: subject Where, “(1) injury, employer employee at the both time of this act. compensation provisions growing Where, “(2) performing service injury, at the time of the acting within the course his employment and is out of and incidental employment. “(3) by employment, either with or proximately caused Where the injured employee, negligence, the intoxication not caused without or is not intentionally self-inflicted. “(4) Where the is caused the serious and misconduct injured employee, otherwise recoverable him shall reduced *13 however, one-half, provided, that such misconduct of the employee shall not be a dependents employee, results injury defense to death, claim of the of said if the results in employee, injury or to the claim of the if in permanent partial a dis- total; further, seventy ability equaling per provided, or in excess of cent of that employee of injury such misconduct said shall not be a defense where his is caused law, by order employer comply any provision any safety the failure of the to with of or commission, safety of the with to the places employment. reference of of “(b) exist, right compensation Where such conditions of to recover such act, pursuant compensation, against provisions remedy of this be the shall exclusive death; employer provided, for the or that where the injured by employer, reason the serious and misconduct or his of representative, managing the thereof, employer on the or be a partnership, part if the on the of one of a partners, corporation, part managing or if executive officer death, the amount otherwise recoverable as for one-half, provided, shall be increased of the of this act as hereinafter notwithstanding; contrary payments said provided, to maximum or otherwise tо the however, twenty-five increase of award shall no event exceed hundred dollars. “(c) concur, all where In other cases the conditions of do not (Italics employer passed.” shall be the same as if this act had been not 586, (Stats. added.) 834-835.) pp. ch. act was the Legislature, same month that approved, The resolution, to the voters an amendment section recommended joint measure large article XX. The amendment duplicated proposed act,10 1 of the to remove all doubts as section intended laws.11 On of then workmen’s constitutionality existing 5, 1918, the voters. November the amendment was approved XX, amended, pertinent part 10 The text of article is contained in section portion compared ante. quoted in footnote of that section should be with the act, excerpt of ante. reproduced of the 1917 in foonote only arguments regarding two the 1918 to section 11The official amendment XX, article are as follows: necessary “This amendment is amplification a definition of constitutional legislature authority vested in the the amendment the Constitution adopted 10, 1911, a complete plan October to enable the enactment of com- workmen’s pensation, express requisite which amendment failed to scope sanction for complete plan. complete plan the enactment to make a and workable Such a embraces things, principal component four each an essential of one act: “First—Compulsory compensation indemnity provisions requiring benefits for death, injury and irrespective of fault.
“Second—Thoroughgoing safety provisions. regulation, including “Third—Insurance participation state in insurance of this character. involving system judicial “Fourth—An administrative the exercise of both executive functions. covering safety “The earlier expression amendment contains no and insurance matters, meager only contains authority and indefinite for administration. Not- limitations, withstanding the legislature enactment, obvious did incorporate one plan compensation, safety, full adequate provisions with insurance and act, slight modifications, administration. This and one-half with has been in effect more than four satisfaction, years. given It has full both in its effects and in its admin- departments. in all up istration The state built a great has financial institution of magnitude—the Compensation State Insurance has Fund—which transacted busi- running ness into of dollars. millions proposed designed express authority legislation; “The amendment full sanction, protect plan establish and in all essentials where courts have full already passed upon not it. itself, proves approval “As a law is entitled to and to be established Compensation Safety As the Workmen’s Insurance and Act has foundation. firm proved beneficient, just, wholly justified humane and and has its enactment in features, all it should receive constitutional sanctions. full Edgar A. Luce
State Senator Fortieth District enlarges scope previous “This amendment the amendment consti- tution, authority present which furnished compensation the for our workmen’s act. injuries received, compensation In addition to of any complete workmen for scheme provide state, authority devices, require safety should for to the of use and that the well as private companies, against employers insurance can furnish insurance to liability injuries 1911, for employees. to providing their The amendment of while compensation, give for did the complete safety not desired full and for sanction have XX since Nor Section 21 of article has not been amended 1918. been changed basic the law the of workmen’s compensation 1, ante), fn. (see the of Labor Code intervening in Section 3600 the years. act, which the codification of section 6 of the 1917 still imposes upon It negligеnce.” “without to regard for employers compensation the still denies where the was caused injury compensation employee’s change was self-inflicted. The intentionally only significant intoxication addition, (f) bar the has been the of subdivisions and which (g) in deliberately the and of benefits has “willfully where payment employee an altercation caused his own death” or where the arises “out of the in which the initial injured aggressor.” physical that words detailed above the convincingly demonstrates history in section the fault of were not inserted “irrespective.of party” article XX order the from conditioning to forbid compen- Rather, used sation on absence of were wrongdoing. they the' intentional enable free from strictures the'Legislature approach problem Act of the common law. Since the Roseberry passage had their “without regard employers compensate employees have time, But at the each workmen’s negligence.” same successive compen- act denied sation has or reduced benefits where employee engaged Since has been denied if a work- misconduct. compensation intoxication, if resulted and in- man’s since it was (f) merely self-inflicted. Subdivisions added in tentionally (g), continue the from coverage excluding injured pattern employees indeed, we their own intentional It would be if wrongdoing. startling, were now to each of workmen’s acts that these compensation hold unconstitutional" because it conditioned on right absence of intentional misconduct. behind section
Furthermore, history examination our to the Constitution was added the section XX that indicates article as to con- all doubts for; of removing amended sole purpose then however, Laws, passed have been fund. legislation a state insurance or the creation of years compel the use of a legislature upon acted for number by the fund. present state insurance operation also and has won such proved act such success has workmen’s “Our put public employer employee, should universal with favor grounds basip possibility being beyond attacked on technical constitutional firm authority. any questioned Senate Constitutional want constitutional reason authority beyond any a com- places the constitutional doubt Amendment No. system. plete workmen’s Jones, Herbert C. Twenty-eighth District” State Senator added.) (Italics *15 (See statutes. workmen’s the then
stitutionality existing compensation 11, basic features ante.) Thus, cannot be read as invalidating the section fn. Coats, Liability (See existed of those laws as have since 1911. they 534.) Fault 42 State Bar J. sum,
In of the fault of which any “irrespective party,” phrase 21, XX, “with with in section article must phrase appears equated 3600. out to which in section negligence,” regard appears Legis “fault” were lature felt that and “negligence” quite obviously equivalent. statute has From Act until each Roseberry imposed present day, virtually “without all of that liability negligence,” to while for regard period of the fault the Constitution has contained phrase “irrespective Indeed, act used in the both in the same act were party.” phrases (see 8, ante) “fault” which states the —the in section fn. language pur act, 9, of the 6 (see and the in section fn. “negligence” poses language ante) which lies at the core substantive When in provisions. recommended year, same the 1918 amendment to Legislature XX, section article it likewise used the of the fault phrase “irrespective of any to mean that could be without party” regard imposed fault,” as “without negligence. regard to “Irrespective just negligence,” was used as a indicate that would no key longer phrase compensation be ruled became by law tort doctrines. Both associated common phrases with workmen’s in much the as “no-fault” same mannеr compensation has become attached to a broad of recent range revisions proposed law tort relating automobile accidents.
Finally, hold that 21 of XX section article prohibits into taking account intentional or em- wrongdoing employer would cast over a vast ployee providing doubt number of other Labor Code which a notion of intentional incorporate If fall, fault. subdivision of section 3600 so also (g) were sub- should (d), (e), (f), divisions which where the deny injury intoxication, caused by self-inflicted, is the wilfully of “a product deliberate wilful act of suicide.” would be Similarly vulnerable section 4551, which reduces the award one-half cases by in most in which the misconduct, results from the serious and wilful employee’s section which the award where the increases one-half by caused serious Doubt would employer’s misconduct. also be cast which award section augments percent fails where to secure employer wilfully compensation; payment an additional award of fees under attorneys’ permits circumstances; such and section which increases if the is under 16 of age illegally injured years percent *16 the award adjusting Other at time of injury.
employed sections fault of the intentional parties to the according Coats, (See generally, 5814. (d) (e), and and subdivisions XX articlе that section 21 of do not find 534.) J. We 42 State Bar supra, of the workmen’s compen- butchery existing such wholesale requires sation law. Fund Comp. Ins. assertion, in our decision State
Contrary
applicant’s
does not compel
In were directive. of a legislative the absence specific which had evolved in defense into entering that reasoning had relied That doctrine judicial satis- duties and from his work altercation, aggressor departing following Hull: 12 Applicant “The workmen’s portions refers to the statutes and the Constitution law as declared in Legislature upon the confers the award. The Constitution compels affirmance of a and enforce and create system establish a of workmen’s power to the course sustained in workmen for compensate their employers on added.) (Cal. (Italics any party.' ‘irrespective employment of their Const., fault of are, be com- that to XX, 21.) only of the statutе requirements § art. The employment. of’ the ‘occur in the course ‘arise out of’ and pensable, an must 3600.)” 659, 660.) Code, (38 (Lab. Cal.2d § employment, it ‘arose out of’ the “The crucial issue is whether and poses that the and the between, employment is a causal question of whether there connection injury. only Compensation That that is the issue follows from Workmen’s Act contributory negligence of employee fault and assumption which excludes and express declaration of the of risk as defenses. That is relating Constitution and statutes compensation. Indeed compels workmen’s the statute that result inasmuch it part as not defeat his declares that ‘serious wilful misconduct’ on the of the employee does half, recovery; merely cuts it not even that under certain Code, 4551), (Lab. indicating clearly conditions thus that part misconduct his on defense, charge aggressor a defense. Hence the is not cannot be a nothing it is employee more an assertion that the blame—brought than was at fault—was to it on (Italics omitted.) (Id. 661.) at p. himself.” require “The that public policy recovery contention is made considerations of that injured engaged be denied in cases where the a while in the violation of statute, because, case, penal recovery to allow a permit person in such would wrong". appears many benefit own That to be the real basis of of the decisions denying recovery. fault statutes holding deny recovery The effect of such is to because of the employee contrary express provisions of the Constitution and relating to compensation. question workmen’s policy people is for the and the they first instance here spoken have no uncertain fault, language, saying gence misconduct, contributory negli serious (Id. recovery.” 670.) do not bar at p. *17 the alter- Therefore, during received any injuries desire. fying personal in the course employment.” to “arise out of and cation were said not “ work Hull, ‘that recognizing places this reasoning, In we rejected and mechanical impacts, human from fatigue men under strains some ways, only creating myriads frictions which explode are created Personal animosities to their tasks. relevant immediately outside in traffic. Others initiated on the assembly by working together contacts. its by job breaking point compelled are magnified temperament. to these impacts upon No worker immune pressures trivial and important, per accumulate and over incidents They explode the culmination merely and official. But sоnal explosion point task, relevant it not immediate the antecedent That pressures. illegality duty, or an element volition lapse involves a contains from nullify pro their causal not it them nor does disconnect effect injurious italics.) (38 Cal.2d ducing consequences.’” its (Original 666; (1940) Indemnity Accident & Co. v. Cardillo 112 quoting Hartford 52], (1940) F.2d U.S. L.Ed. 17 cert. den. 310 649 App.D.C. [84 [72 1100].) 60 S.Ct. Pointing out that Legislature had provided compensation despite contributory negligence risk, and had reduced only assumption the award where the percent in wilful injured employee engaged misconduct, we found no basis for that inferring had intended to deny Instead, aggressors. resulting injuries from altercations fell clearly within the awards general provisions allowing for injuries of and arising out in the course of we found Since employment. Legislature intended to recover, allow there aggressors was no justification for the judicial doctrine an award such cir- precluding cumstances.
In Hull we held it for the improper the work- judiciary supplement men’s Hull, scheme established Since Legislature. the Legislature has expressly that initial provided shall physical aggressors not receive As in Hull we now compensation. follow the intent expressed of the Legislature.
At oral argument for the first time applicant sought challenge section subdivisiоn I, (g) in conflict being with article section 11 of the California Constitution13 in that workmen’s prohibits com benefits to class of pensation without a employees rational basis. Con 13“A11 general laws of a nature shall have application.” a uniform 5904,14 Board, and the to the contention
trary employer all raised in the which deems waived not objections petition applicant’s reconsideration, that issue. Con reaching not us from does prevent W.C.A.B., not challenges, cognizable may stitutional which are & Ins. v. (National court. A. C. Co. reviewing before brought 1]; (Lonnon) Ind. Acc. Com. P.2d Cal.App.2d [212 10.08[6], Hanna, supra, 10-41.) p. *18 is that enrollees in economic pro Applicant’s point opportunity 4207)15 (§ 4353)16 (§ and service workers are not disaster grams speci the barred when are recovery they from workmen’s fically so barred initial whereas aggressors, generally physical employees 3600, the does under section subdivision But Constitution (g). treatment, not uniform a basis for class reasonable only legislative require System (Bilyeu Employees' (1962) v. Retirement 58 Cal.2d ification. State 442].) 623 It the the 375 P.2d is duty Cal.Rptr. [24 determine whether the facts such a classification Legislature justify the burden the arbi to show that the conclusion is challenger legislative (Professional Fighters, City Angeles (1963) Inc. v. Fire Los trary. 158].) we Cal.2d 288-289 384 P.2d As Cal.Rptr. [32 said in Sacrаmento M. U. v. P. & Co. 20 Cal.2d Dist. G. E. provides: shall be deemed to petitioner 14 Section5904 “The for reconsideration finally objections, illegalities concerning irregularities, have waived all the matter sought petition which the than set forth in the reconsideration is other those for reconsideration.” “Compensation provides part follows: shall fur pertinent 15 Section as following injury nished enrollee for ... if the conditions occur: an “(a) acting injury, at time is and is performing Where the the services enrollee scope recipient opportunity as a aid economic within his duties within an program. “(b) injury proximately by Where is caused service as an enrollee within an negligence. opportunity program with or without economic either “(c) injury by injured Where is not caused the intoxication of enrollee. “(d) intentionally injury Where the self-inflicted.” is not part “Compensation as follows: shall be provides pertinent 16 Section 4353 any injury to a service worker for suffered ... in those cases furnished disaster following where concur: conditions Where, “(a) injury performing worker at the time of the disaster service is worker, acting as disaster service is within the course of his duties services a disaster service worker. Where, “(b) injury at the time of the the disaster council with which disaster registered аccredited disaster council or the disaster service service worker is is an unregistered service. . . . person impressed worker is an into “(c) injury Where the as a disaster service proximately is caused his service worker, negligence. with or without either “(d) injured is worker. Where the not caused intoxication “(e) intentionally Where the self-inflicted.” not in making in the Legislature P.2d “Wide discretion is vested 693 [128 529]: is in favor of validity the classification every presumption statute; distinction as to what is sufficient the decision of Legislature the courts unless will not be overthrown to warrant classification A erroneous. rational doubt arbitrary beyond [Citations.] palpably can if set of facts arbitrary reasonably distinction in is not legislation classifica legislative that would sustain it.” We be conceived presume without tion valid and will it “unless it is manifestly support sustain Pillsbury, supra, v. Cal. (Western Indemnity Co. reason.” 398].) P. [151 “ in the service means every
Generally speaking, ‘[e]mployee’ person or contract of hire or under apprentice eipployer any appointment written, oral or whether lawfully unlawfully ship, express implied, However, ex has (§ 3351.) . . . .” employed the Workmen’s cluded certain classes of under persons coverage 3352), ex (§Act and it has been settled that such Compensation long *19 nоt “make the law vulnerable as . . . legislation clusions do special pro of differentia vided the classification be based on some rational ground 686, (Western 702.) Indemnity Pillsbury, supra, tion.” Co. v. Cal. token, the act to same By extending coverage persons not within the different those definition of on terms “employee,” does our Constitution if not violate the generally provided, prohibitions a reasonable for the distinctions be found. basis may
In 1946 the in 10 of 1 of division Legislature provided chapter part Insurance) (Workmen’s of the Labor Code and for the fur- Compensation and to disaster service workers their nishing dependents for or death and “within or without State out of arising occurring (§ activities as a disaster worker” italics in course of his service added). In for the in Legislature provided chapter furnishing to enrollees in economic their opportunity programs or death “suffered within or without the state occur- dependents in the within an economic course of his duties for agency ring sponsoring (§4207.) . . . .” In each instance the furnishing opportunity program the concurrence of conditions specified compensation depends upon which, (see for an additional condition for disaster service workers except (b); ante), 15 and the same subd. see fns. are substantiаlly themselves, out, different from but are as in some points applicant respects It is the conditions for generally. furnishing employees that these workers and enrollees in obvious two service groups—disaster fit under totally clearly economic not opportunity programs17—do 17Significantly “employees,” these italicized terms are used instead of the term added) (§ phrases “in the course of activities” italics “in the all, not if and that a great portion, definition foregoing “employee” Act the Workmen’s Compensation be excluded from their members might that the think it clear them. We if had not been made for special provision have reason have this difference might Legislature might recognized within the customary category found that did not fall these two ably groups under which they least that the conditions performed or at employees em normal those involved their duties were so far different from furnishing conditions for different justify ployer-employee relationship entire legislative examination compensation.18 Upon scheme, therefore, two classifications we cannot that these say separate arbitrary. therefore,
We, subdivision (g) conclude that section constitutional, concluding precludes and that the Board did not err cаse. an award of benefits this workmen’s compensation is affirmed. The decision of the Board reconsideration following J., J., Tobriner, J., Burke, J., McComb, concurred. C. Wright, MOSK, I dissent. J. a natural wrote this “‘That there is
In 1952 Justice Carter court: of a no excuse for relieving industry repugnancy help guilty party *20 . . . . It is the character and on the worker or charity it placing em- whether it arises out of his and nature of assault determines in- not the of lack culpability parties ployment, culpability who volved. It is the assault itself which arises out of employment; (State that ....’” initiates the altercation has on bearing question no Ins. Com. 38 Cal.2d 669 Comp. Fund v. Ind. Acc. [242 in- 311].) (Italics omitted.) law then and its is P.2d This was good logic case to the in the facts of this today applying escapable state Constitution and the intent of workmen’s compensation underlying laws. employ- (§ 4207, added), of the of his duties" (§ instead of “in the course course italics added).
ment"
italics
(conditions
general
18 E.g.,
recovery,
provision)
compare section 3600
essential to
(conditions,
enrollees)
opportunity program
4207
economic
and section
with section
workers);
(conditions,
(temporary partial
dis
disaster service
disability,
ability, general
(temporary
provision)
partial
with section 4364
disaster
benefit,
workers);
($1,000
general provision)
service
section 4701
maximum burial
($600
benefit,
program
opportunity
section 4214
maximum burial
economic
with
($700
benefit,
workers).
enrollees)
burial
disaster
and section 4368
maximum
service
view: “The homely
with
the Larson
cites
majority opinion
The
approval
over,
almost
that,
impossible
it
often
after
long
fact
quarrel
[is]
Larson,
(1
Compensation
it.”
Workmen’s
determine who
started
really
the Work-
what
ed.)
159.) Yet that is
(1968
11.15(c),
Law
p.
precisely
determine who
Board
here:
men’s Compensation
attempted
Appeals
Constitution,
test,
should
started the altercation. The
really
pursuant
in
occur
the course
out
“Did
arise
have been
the altercation
merely:
affirmative,
in the
must
answered
That
employment?”
query
Indeed,
of fact of
findings
follows.
award
compensation necessarily
out of
an injury arising
deceased “sustained
the referee confirmed that the
his
in the
course
occurring
employment.”
victim,
assailant, Cedillo,
is no
Mathews,
There
evidence that the
or his
knew each other or that
had
paths
their
ever crossed
the incident
prior
out of labor
at the
in
arising
Castaic Dam site Los
being performed
Angeles
trucks,
As
of his
County.
work in
part
Cedillo
or
directing
gave
incoming
ders to Mathews and the latter
in a vehement and
apparently responded
Mathews,
blow,
manner.
disagreеable
Whether
who struck no
nevertheless
can be deemed the initial
is of no
since
physical aggressor,
consequence,
fact
indisputable
remains that the two
in the altercation
participants
were
on the
present
construction
became involved in a
premises,
heated
act,
controversy
all in
proceeded to
connection with their employment.
In that
this case
respect
than
factually stronger
compensable tragedies
aas
result
occurring
their
grievances having
origin independent
job.
& Fire
(E.g.,
Comp.
Co. v. Workmen’s Comp. App. Bd.
California
(Schick) (1968) 68
Cal.2d 157
The saw the issue v. Appeal Workmen’s properly Litzmann Comp. App. Bd. (1968) Cal.App.2d Cal.Rptr. There [71 731]. the referee found that the employee’s occurred the course of “but that the employment arose out altercation which appli and, cant was the initial therefore, he was not entitled physical aggressor (Id. an award.” at 204.) court found that the did not p. evidence sustain did, that, finding even “and applicant aggressor if *21 could (Italics added; not be denied on that ground.” id. at 210.) The court p. adhered to basic test of whether arose injuries out of in the course of the This was applicant’s the correct employment. for once a assault, othеrwise, court concedes that an approach, malicious or out of the arises for the the same assault employment neces nonaggressor, arises out of the for the is the sarily It assault which employment aggressor. is related to the and who initiates it has no on the employment, bearing issue, unless we are to revert common law considerations. culpability Horovitz, (See Horseplay Assaults Under Compensation Workmen’s (1946) 346.) Laws 41 Ill. L. Rev. is anachronistic and to the contrary defense
Recognition aggressor of the trend in the Larson “The abolition unmistakable law. out: points defense the most doctrinal reversals in volatile is one of aggressor rapid had the law. Before 1947 the defense aggressor history Massachusetts, 1947, and entire field to itself. Then New in Hampshire, Moreau handed down the reasoned in Newell v. cogently opinions 476)] (85 Case Mass. 102 N.E. (55 N.H. A.2d and Dillon’s [324 [94 defense. 69)], as a 2d the entire flatly aggression rejecting concept a few defense have cases Although asserting appeared, subsequently com major feature of the new trend is the number the most impressive the defense in abolished that have deliberately spite pensation jurisdictions California, decisions it. These include jurisdictions of earlier supporting omitted; 1 Minnesota, (Fns. and New York.” New Michigan, Jersey, Larson, 154.)1 op. cit. supra, p. 3600, subdivision Code section
The then arises as to how Labor question of the facts in order to is to be If it involves a weighing (g), interpreted. fault, the code section whether the Was at then ascertain injured employee of the Constitution. afoul of section 21 of article XX California runs clearly authorizing amendment When the constitutional adopted people workmen’s they create “a Legislature complete system compensation” that com- system principle cornerstone complete provided workmen, for death of the and their for dependents pensation provided irrespective in the course of his workman employment, fault of Hence, wrote, cannot be as Justice “the party. aggressor Carter charge at defense, that the was it is more than assertion nothing (State Fund v. Comp. Ins. fault—was it on himself.” to blame—brought Com., 661.) Acc. supra, Ind. at p. strained conclu- of their recited history majority support some Legislature consistently if one ascribes only
sion is helpful
circumlocution,
As
drafting.
inadvertence
strange design,
repeated
out,
Act referred to liability
the earlier Roseberry
majority point
“without
Thus
regard
negligence.”
when it accurately
with and knew how to utilize that
familiar
expression
reflected the
intent.
adopted legislation speak-
legislative
Having previously
Hampshire
Justice
and Chief
decisions
Justice Kenison in New
1The innovative
others,
following:
including
Qua
quickly
were
followed
in Massachusetts
(1950)
Hospital
App.Div.
&
Commissioner
Taxation
Fin. v. Bronx
(Miss. 1951)
120];
Laundry
55 So.2d
v. Watts
Brookhaven Steam
N.Y.S.2d
[97
203];
394;
Myszkowski
(1952)
&
In this' case the of the Board and the can be sustained position majority if the only terms of the fault of and “without “irrespective any party” regard some negligence” entirely synonymous. While concededly judicial definitions “fault” restrict its meaning “negligence,” lexicographers deem “fault” be a broad which generic the lesser word neg term includes others, misconduct, but also ligence such as wilful many gross negligence, misbehavior, dereliction, offense, de transgression, wrongdoing, culpability, rectitude, (Web viation from “a general and in failure to do what is right.” (3d 1961), 829.) ster’s New Internat. Dict. ed. Trasatlantica Compania p. v. 209, Es S.A. panola, (1st 1966) Torres Cir. 358 F.2d Melendez 213, discusses a statute which refers to “fault or holds negligence” same; do not terms mean the fault was found there to include a breach of v. Koerber (Also Lashley obligation warranty. see 26 Cal.2d 83, 441]; Seelye (1920) P.2d United Canneries [156 Cal.App. v. 341].) P. A number of code sections refer “fault” and [192 Code, are not limited to clearly (b) (2); negligence. (E.g., Civ. subd. § Code, thereto.) Com. and comment argumentum resort to the ad horrendum if we were “to majority
hold that section 21 of article taking XX prohibits into account the intentional wrongdoing employer pro- viding assert that doubt would cast over the They сompensation.” (d), (e), (f) subdivisions of Labor Code section validity well as section if the reduces award one-half misconduct, results from the and section serious employee’s which increases the award one-half if the is caused by misconduct, serious and wilful and also other sections providing employer’s for various increases and decreases in awards. I that these fears are suggest
744 and that event of intoxi is irrelevant. in the. groundless Recovery point cation, Code, (Lab. (d), self-inflicted or suicide subds. work-related, (e), (f)) be if the em can if the act was not prevented established, limited is then ployment by invoking relationship 4553, I misconduct statute. As to out that nowhere sections 4551 point in the constitutional authorization for establishment of a work legislative amount of men’s there reference to system is specific Indeed, we case be awarded. as noted in our recent Dept. (1971) Bd. Comp. App. of State Corrections v. Workmen’s 818], Cal.3d 489 P.2d Cal.Rptr. injured employee [97 seldom, ever, if made whole virtue of a award. The be amount to be and the thereof to given petitioner, percentage pro vided be employer, Legislature, only may prescribed constitutional mandate is that a system compensation provided withheld that an award cannot bе should on the basis of fault. How much be awarded in terms of dollars or under circumstances percentages specified within the legislative prerogative. been
Here there has no exercise of the to direct legislative prerogative that the awarded sum an “initial shall be increased aggressor” ratably reduced; a there is total an award when the against made being prohibition defense of “initial Yet an in an sustained. award aggressor” appropriate amount, submit, I cannot be section 21 of the denied without violating article XX.
In the Board amicus curiae cavalierly denigrate supporting expres- sion fault” that has served as a “irrespective “catch-phrase” species “a a as battle shibbo- cry, variously campaign slogan, figure speech, short, Board, curiae, leth.” In and now the the amicus position court, of this is that the constitutional is as majority meaningless provision that the cannot be inhibited yesterday’s oratory; political which workman is statutes when deny compensation injured passing found to be at fault. I cannot be that casual in of our Constitu- application tion. court, while
Justice on the circuit wrote a landmark Rutledge, opinion behind elimination of the physical aggressor expresses philosophy Indеmnity In Accident & v. defense. Co. Cardillo Hartford said; 11, 52], F.2d footnote he “Natural repulsion App.D.C. [72 misconduct for the toward intentional accounts rewarding largely [problem], fact that one of the statute is sustenance of though ignores purpose and their misbehaving employee’s family during disability dependence is not the less because the misconduct is his rather than another’s.” This *24 in the instant case in which workman is quotation apt particularly and deceased widow is the dependent petitioner.
Then, with whether the concerns itself not writing concept was the claimant but with whether the arose aggressor, immediately dispute work, 17): over the Justice (at said “This view Rutledge p. recognizes work men under human and strains from mechanical places fatigue frictions which creating some impacts, ways, only explode myriads of which are relevant to their tasks. Personal animosities are immediately created by working together on the line or in traffic. Others initi assembly ated outside the job magnified its breaking point by compelled contacts. No worker is immune to these tem pressures impacts upon perament. accumulate and They over incidents trivial and im explode portant, personal official. But explosion merely point culmination of the antecedent That it is not relevant to im pressures. task, mediate involves a or contains an lapse duty, element of volition does not illegality disconnect it from them nor their causal effect nullify its producing injurious view other would reintroduce consequences. Any the conceptions fault, action in the line of contributory nonacci duty, dental conduct, character of voluntary cause as independent, intervening law, in tort which it was the applied (Fn. of the statute to discard.” purpose omitted.) bent, Of the same not in a work philosophical though expressed case, men’s compensation was Justice for this court in Traynor’s opinion Carr v. Wm. C. (1946) Crowell Co. 28 Cal.2d P.2d [171 5].
I Com., am convinced Comp. that State Ins. Fund v. Ind. Acc. supra, is still sound law and that its of the constitutional concept provision “irrespec tive of fault” is us under binding the doctrine of stare decisis. That the have reached a may constitu conflicting interpretation tional as evidenced provision, its of Labor Code adoption subdivision (g), unfortunate but not “We cannot back controlling. push the limits of the Constitution merely accommodate challenged legisla (Warren, J., tion.” C. in Trop v. Dulles 356 U.S. L. [2 630, 644, Ed.2d 590].) 78 S.Ct.
I would annul the decision of the Board and remand the matter for ap- propriate proceedings.
Peters, J., concurred. Petitioner’s was denied March application rehearing 1972. Peters, J., Mosk, J., were that the should be opinion petition granted.