171 P. 797 | Cal. | 1918
Application for a writ of review. The petitioner was the proprietress of a rooming-house known as Hotel Merritt, in Oakland, California, and had in her employ as a chambermaid Mrs. Harriet Anne Prosser, on and prior to October 3, 1916. Mrs. Prosser was married, but had been in the employ of the petitioner for about three months prior to the above date, occupying one of the rooms on the premises, her husband in the meantime being away in Oregon looking for work. The hotel was small and was kept in order by the proprietress, Mrs. Prosser, and a janitor. The general duties of Mrs. Prosser were to make the beds, sweep, dust, and keep tidy the bedrooms. At times she answered the telephone and occasionally assisted the clerk. The janitor's duties were to take care of the halls, general toilets, and bathrooms, and generally to keep in order the exterior parts of the premises. There was a light well attached to the premises upon which the windows of some of the hotel rooms opened, and which also furnished light to other tenants of the building. The janitor of the hotel was accustomed to keep the light well in order and clear of litter, although there was no provision in the lease requiring this to be done by the lessee. For some time prior to the accident which cost Mrs. Prosser her life, the janitor had been ill and unable to fully *717 attend to his duties in this regard. Litter had gathered in the light well, which the janitor had been instructed to clear away, but which he had been unable to do because of his illness. One day shortly before the accident, the owner of the building being there in the absence of the proprietress of the hotel, noticed the litter in the light well, and suggested to Mrs. Prosser that it would look better cleaned up, and she promised him that she would clean it. Two or three days later, in the absence of the proprietress, and without any knowledge or sanction on her part, Mrs. Prosser told the clerk she was going to clean the light well. He told her that it was not her work and advised her not to do it. She, however, persisted, saying that she had promised the owner, and climbed out of one of the windows for that purpose, when she fell a distance of about nine feet to the bottom of the light well, receiving injuries from which she died. The application for compensation before the commission was made by Mrs. Martha M. Landis, a sister of Mrs. Prosser, and by W.S. Prosser, the husband of the deceased, as guardian ad litem of Rachel Love Prosser, a minor child. Rachel Love Prosser was not related to the decedent or her husband, but was an illegitimate child of one who had been a friend and inmate of the home of the Prossers when they lived in Pittsburg, Pennsylvania, some five years previously. The child had been taken by the Prossers at its birth, had been given their name and nurture from that time forth as fully as though it was their own child, although they had not gone through the form of adoption. It had lived in their home while they had a home, but at the time of the injury and death of Mrs. Prosser, and for some time prior thereto, had been cared for in the home of Mrs. Prosser's sister, Mrs. Martha M. Landis, in Sutter County, California, who was being paid by Mrs. Prosser from ten to fifteen dollars per month for her temporary care of the child. The husband of Mrs. Prosser also contributed some small amounts irregularly for the same purpose. The parents of the child were known, but did not live in California, and never in any way assisted in the care of the child. Upon the showing of the foregoing facts, the commission made an award in favor of the applicant, whereby Mrs. Martha M. Landis was given the sum of $52 to repay her for the funeral expenses of the deceased, and was further awarded a total sum of $1,589.45, as trustee for Rachel Love Prosser, payable in weekly installments *718 until the whole of said sum should be paid. Upon petition for a rehearing the commission affirmed this award, whereupon the petitioner herein applied to this court for a writ of review.
The first question presented for our consideration is as to whether the injury and death of Mrs. Prosser was by accident arising out of, and in the course of, her employment. The immediate act which she was attempting to do at the time of her fall and injury was not one which the emergencies of the situation required to be done at once. On the other hand, it was, as the record, and especially the exhibits, abundantly shows, a dangerous act, and one which ordinarily a woman would not be expected to undertake at all, even if the doing of it lay within the range of her general duties, nor could it be expected that an employer would reasonably command or contemplate the doing of such an act by a woman employed in the capacity of a chambermaid. It is conceded by the respondent herein that in attempting to do said act the decedent did step aside from the sphere of her specific employment and was thus beyond its scope, but it is contended that since the act which she was undertaking to do was undertaken out of loyalty to the interests of her employer and for the latter's benefit, the statute should be construed so liberally as to allow compensation for the injury sustained in attempting to perform it. We think, however, it would be an unwarranted extension of the statute to give it application to acts done without the knowledge or consent of the employer, which, however commendable from the viewpoint of loyalty to one's employer, are not only outside of the employee's specific employment and duty, but which are in themselves of such a hazardous character as that the employee ought not to be reasonably expected or required to do them, except as a matter of immediate necessity or emergency, even though they might be within the scope of the employment. This is such an identical case. Even if the deceased had been the janitress in charge of the building generally she could not reasonably be expected to do the thing she was essaying to do, for it was peculiarly the work of a man, and it might even be said of a young and active man, to climb out of a window, find a precarious footing upon a narrow ledge between three or four feet below it, and thence descend by a lean-to step-ladder to the bottom of a light well nearly nine feet below the *719 point of exit from the window. We think the attempted doing of this act by the deceased, admittedly outside the range of her designated duties, was also so clearly beyond the scope of her employment as to require no further discussion. We are cited to cases which it is insisted support both sides of the foregoing contention. A review of these would be unprofitable, since none of them present an approximately parallel situation, and since also, in proceedings of this character, each case as a rule, at least in the formative period of the law relating to industrial accident cases, must be decided upon its own peculiar state of facts. The foregoing views render unnecessary a consideration of the other questions presented upon this proceeding.
It is ordered that the petition be upheld and the award of the commission be and the same is hereby annulled.
