Certiorari to review an award made by the Industrial Accident Commission to one Fred Douglas against petitioner, Ed. Kimbol, for injuries received by him by accident in the course of his employment by said Kimbol, and alleged and found to have arisen out of said employment.
There is no doubt that the injury to Douglas was sustained "by accident," within the meaning of our workmen's compensation law, and admittedly the accident happened "in the course of the employment." Our act requiring as an essential to compensation that the injury must not only be received in the course of the employment, but must also arise out of the employment (section 12), the claim is that the injury here did not arise out of the employment within the *Page 353 meaning of our act. A divided commission has found against this claim. There is no dispute as to the material facts.
Kimbol was the owner of and was conducting a restaurant business on the ground floor of a building in Los Angeles. Douglas was in his employ as a dishwasher. While working as such, the floor immediately above the place where he was at work suddenly gave way, with the result that he was struck by some falling object or objects, and injured. The giving way of this floor was due to the fact that it was overloaded, a large quantity of bottled grape juice having been stored thereon. This floor was not included in the lease under which Kimbol occupied that portion of the building devoted to restaurant purposes, and he had no control whatever thereof. Nor did he have any knowledge that the floor above was being used for storage purposes. It was in fact rented for a rooming or lodging house, and the lease contained a clause that it should not be used for any other purpose.
Under these circumstances can it fairly be held that the injury arose out of the employment?
The supreme judicial court of Massachusetts has said in regard to the meaning of the term "arising out of the employment" as used in workmen's compensation laws: "It [the injury] arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would be equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment *Page 354 and to have flowed from that source as a rational consequence." (In re McNichols, 215 Mass. 498, [L.R.A. 1916A, 306,102 N.E. 697].) This appears to us to be a good general definition of the term "arising out of the employment," and we think it fairly includes such a case as this. It will be conceded, in view of the facts we have stated, that the place in which Douglas was employed was not an unsafe place in the sense that there was any structural defect therein likely to cause injury so long as the building was used for the purposes for which it was intended, and that the danger of a collapse of the ceiling of the restaurant and the collapse of such ceiling were due wholly to the unauthorized use by another of the floor above for storage purposes, and the consequent subjection of that floor to a greater burden than that for which it was designed. But because of this unauthorized use of the floor above for storage purposes those below were in fact in danger of injury from a collapse of the floor, and in that sense the place in which Douglas was required to do all his work was an unsafe place. The danger was one peculiar to that very place — an incident of the particular premises used as they were being used — and it is not unreasonable to say that Douglas wasspecially exposed to that danger by reason of his employment. Solely by reason of and in pursuance of such employment he was required to remain in this unsafe place exposed to this danger of a collapse of the ceiling of the room in which he was constantly at work. The risk was normally one incident to working in that place, one due solely to its unsafe condition. If this be so we are of the opinion that the injury may fairly be said, in view of the authorities, to have arisen out of his employment. All the circumstances being considered, there is a causal connection between the conditions under which the work was required to be performed and the injury. The resulting injury was a natural incident of the work in view of the conditions under which it was being done, one that would have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment. The danger was peculiar to the particular place in which the employee was required to work. It is true that the accident was not actually foreseen or expected, but this is not necessary. It is sufficient that after the event it appears to have had its origin *Page 355 in a risk connected with the employment, and to have flowed from that source as a rational consequence.
The question of special exposure by reason of the employment has been considered in various cases. The general rule deducible therefrom is that if the exposure of the employee to a particular danger differs substantially from the normal risk to which all are subject, if the employment necessarily accentuates and increases the danger to a higher degree than that to which persons generally are subjected, then it may fairly be held that there was such special exposure to such danger as warrants a conclusion that the accident arose out of the employment, even though unexpected or unusual and in no way actually anticipated. (See Martin v. Lovibond Sons (1914), 2 K. B. 227, 5 N.C.C.A. 985, and note; Hoenig v. IndustrialCommission, 159 Wis. 646, [L.R.A. 1916A, 339, 8 N.C.C.A. 192, 150 N.W. 996]; State ex rel. People's Coal Ice Co. v.District Court, 129 Minn. 502, [L.R.A. 1916A, 344, 9 N.C. C. A. 129, 153 N.W. 119]; Adamson v. Anderson, Workmen's Compensation Cases, 1913, p. 506, 2 S. L. T. 139.) It seems clear that this case is one in which the accident and injury to Douglas can fairly be held to have "arisen out of the employment" within the meaning of that term as it is defined inIn re McNichols, 215 Mass. 498, [L.R.A. 1916A, 306,102 N.E. 697], and the other authorities cited herein, and that the conclusion of the accident commission to that effect must therefore be sustained. As we have seen, it can make no difference that the danger was not known or anticipated. Nor can it make any difference that the employer was entirely without fault. The liability for compensation created by our law is not founded on any want of care on the part of the employer. Nor is it material that the dangerous condition of the place in which Douglas was working was due entirely to the fault of some third party. The room in which Douglas was required to do his work had become an unsafe place in which to be, because of the danger of a collapse of the ceiling thereof, and solely by reason of his employment in that unsafe place he was specially exposed to such danger. We have said that an accident arises "out of the employment" where "it is possible to trace the injury to the nature of the employee's work or tothe risks to which the employer's business exposes theemployee," and that "it arises out of the occupation when there is a causal connection *Page 356 between the conditions under which the servant works and theresulting injury." (Coronado Beach Co. v. Pillsbury, 172 Cal. 682, [158 P. 212].) The italics are ours. Under the facts we apparently have here a risk to which the employer's business specially exposed the employee. The danger was a constant one, inherent in the place itself under the conditions there existing, and the injury was one which a person cognizant of those conditions would reasonably expect to occur. It has always been the law that it is the duty of the employer to use reasonable care to furnish an employee a safe place in which to do his work. If for any reason, whether due to the negligent or even criminal act of a third party or not, the place was in fact unsafe, the employer was liable to the employee for any injury due thereto, provided that if he had used reasonable care in the matter he would have known of the defect and would have remedied it. The condition as to the safety of the place in which the work was to be done is thus always a matter incident to the employment, and an injury arising from its unsafe condition has always been considered an injury arising out of the employment. Under the old law the employer's exemption from liability where he was not negligent in the matter existed solely because he was not negligent, and not because the injury did not arise out of the employment. Our industrial compensation system has dispensed altogether with the element of negligence on the part of the employer, but it still must remain true that injury to an employee, which is due to the dangerous condition of the very room in which he is required to do his work, is an injury resulting from a "risk reasonably incident to the employment." Of course there is no analogy between such a case as this and such cases as CoronadoBeach Co. v. Pillsbury, 172 Cal. 682, [158 P. 212], andFishering v. Pillsbury, 172 Cal. 690, [158 P. 215], in which it is held that there is no liability on the part of the employer to the employee for an injury inflicted by the "skylarking" of a fellow-employee, because such an injury does not arise out of the employment.
In view of the suggestion as to the impossibility of the employer insuring against such an accident as this, it is proper to observe that if, as we hold, the injury did arise out of the employment, it was one that would be covered by a policy insuring against liability for injuries to employees received *Page 357 in the course of employment and arising out of the employment.
The award is affirmed.
Shaw, J., Sloss, J., and Lawlor, J., concurred.