*

gravating the original injury may be of such a nature, and occur under Such circumstances, as to make such aggravation the proximate and natural result of the original injury. Whether the subsequent incident or accident is such, or should be regarded as an independent, intervening cause is a question of fact for the commission, to be decided in view of all the circumstances, and its conclusion must be sustained by the courts whenever there is any reasonable theory evidenced by the records on which the conclusion can be upheld. * Our conclusion is not at all opposed, in our opinion, to what is said in Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24. The question there was whether the commission is authorized by the act to award compensation to the employee 'for an additional injury sustained by him afterward, not in the course of his employment, by an accident or act which aggravates the first injury and prolongs the disability.' The answer was that it had no such authority if the subsequent injury is neither the natural nor the proximate result of the injury received in the course of the employment.' It was fully recognized in that case, we think, that the subsequent injury may be the proximate result of the injury received in the course of the employment, and compensable under the act, and the finding to that effect in this matter has sufficient support in the evidence."

In a concurring opinion in that case, Mr. Justice Shaw added that

"The award for the further disability here under review can be sustained only upon the ground that the subsequent accident and resulting displacement of the fractured bone was not the result of a lack of ordinary care on the part of the injured employee. An injury so occurring subsequently may be regarded as a part of the proximate consequences of the original accident. The finding of the commission is in effect a finding that at the time of the second accident Scott was not guilty of a lack of the ordinary care which reasonably prudent persons in his condition exercise for their own safety from injury. think it cannot be said, as matter of law, that such finding is without any evidence to support it."

of an

I

The rule announced in Head Drilling Co. v. Ind. Acc. Comn., supra, is well established in all cases where it becomes necessary to determine whether or not there is evidence to justify a finding that a subsequent injury or disease is part of the proximate consequences injury for which the defendant is responsible. In Dickson v. Hollister, 123, Pa. 421, 16 Atl. 484, 10 Am. St. Rep. 533, erysipelas followed a flesh wound received in the course of a fall occasioned by the defendant's negligence. At the time of the decision, the causes of erysipeias were not understood, but the mere fact that it frequently developed from personal injuries was held to warrant an instruction that the disease might be regarded by the jury as part of the injury itself. To the same effect is H. & T. C. Ry. Co. v. Leslie, 57 Tex. 83. 85. The reluctance of the courts to determine the question of proximate cause as a matter of law in cases similar to the instant case is illustrated by Baltimore City Passenger Railway Co. v. Kemp, 61 Md. 619, 48 Am. Rep. 134, wherein it was held that it was properly left to the jury to determine whether or not a supervening cancerous growth was caused by injuries sustained by plaintiff as a result of defendant's negligence. The evidence in this behalf was to the effect that the personal injury might have superinduced and contributed to the production and development of the cancer. The court quoted with approval from Beauchamp v. Saginaw Mining Ca, 50 Mich, 163, 15 N. W. 65, 45 Am. Rep. 30, wherein it was held that it was for the jury to determine whether or not a blow on the head was a proximate cause of death from pneumonia, the evidence being to the effect

that the personal injury had so reduced the vitality of the deceased as to render him more susceptible to disease and less able to resist it. See, also Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359; Terre Haute, etc., Co., v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Eicholz v. Niagara, etc., Co., 68 App. Div. 441. 73 N. Y. Supp. 842; Id., 174 N. Y. S 519, 66 N. E. 1107; L. & N. R. Co. v. Jones, 83 Ala. 376, 3 South

902

[2, 3] It only remains to apply the above reasoning to the facts of the instant case. In the light of medical knowledge properly presented to the commission that such a transfer of a streptococcic infection from a discharging wound as that found to have taken place in Caffrey's case is not only possible, but highly probable, we are of the opinion that the fact that the germs reached the face by external means and not through the system cannot, as a matter of law, be said in itself to have broken the chain of causation. But petitioner contends that Caffrey's conduct was such as to require a finding of negligence on his part. Caffrey was, of course, under a duty to use reasonable care to restore himself to health. But if he conducted himself as would a reasonably prudent person in his situation and circumstances, and innocently enhanced the original injury, it was within the province of the commission to find that the original cause continued to the end and accomplished the final result, and was therefore the proxiDunham v. Clare, [1902] 2 K. B. 292; Hodgson v. Robins, 7 B. W. C. C. 232, 233; Bailey v. Ind. Comn., 286 Ill. 623, 122 N. E. 107; Hope v. Troy, etc., R. Co., 40 Hun (N. Y.) 438, 440; Batton v. Public Service Corp., 75 N. J. Law, 857, 69 Atl. 164, 18 L. R. A. (N. S.) 640, 127 Am. St. Rep. 855. Under all of the circumstances, we are not prepared to say that the commission was not justified in the instant case in finding that his original injury was the proximate cause of Caffrey's death.

mate. cause.

It appears that when the toe first troubled him Caffrey had it dressed by Dr. Marvin at the emergency hospital at the shipbuilding plant. When called as a witness, the doctor did not recollect the case, but the hospital record explained by him indicated that the toe was not in a very serious condition, that Caffrey was given no special warning, and that he was told to go to another hospital in a day or two when the dressing needed to be changed. The next day he started to work, but, on account of the pain in the foot, he returned home. He might have had free treatment at the hospital maintained by petitioner for its employees, but he chose instead to remain at home and treat the foot himself with witch hazel and iodine. In the light of subsequent events, this was an unfortunate decision. We are however, unable to say as a matter of law that the commission was bound to find that, under all the circumstances appearing at the time, it was a decision so unreasonable and imprudent as to amount to a breach of his duty to use due care to restore himself to health. There is no further fact in the case upon which negligence can be predicated. It is not suggested that Caffrey failed to use due care in his own treatment of the foot. It was not until the third day of his absence from work that he first noted a swelling of the face, which he at that time attributed to a cold in the head. The toe, however, was improving, and he wrote to his foreman on that day that he was a little better and that he would try to return to work as soon as possible. Serious symptoms first developed on the face on the following day and without further delay he was removed to a hospital for treatment.

[4] The facts of the case are not such as to warrant the conclusion that the commission was bound to find that the transfer of the germs from Caffrey's toe to his face was due to his own negligence. It fol

lows that we cannot disturb the finding that his death was the natural consequences of the original injury.

The award is affirmed.

Wencur Angellotti, C. J.; Wilbur, J.; Melvin, J.; Lawlor, J.; Olney. J.

in the toe.

SHAW, J. I dissent. Caffrey, while at work for his employer, had an accident which abraded the skin of his toe. From that abrasion natural causes which he could not control brought on an infection The infection and consequent diseased condition of the toe were the proximate results of the abrasion and of the accident. But the infection did not reach his face by the operation of natural causes. The commission so found. It reached the face by being subsequently carried there, either from some other source, or by some agency entirely disconnected with the infected condition of the toe, or by his own act in carelessly or accidently touching his face with something in which had been in contact with the infection in the toe. Any one of these causes would be an independent intervening cause and not a cause arising proximately from the injury.

It makes no difference, with respect to this question, whether the act of Caffrey which carried the infection to his face, if it was so carried, was negligent or merely accidental; in either event it was a cause independent of the original injury and intervening it and the deposit of the infection on the face. The opinion of the majority appears to assume that an act of the injured person cannot be independent intervening cause unless it is a negligent act. This, of course, cannot be correct. The question whether or not it is negligent has no place in an inquiry whether or not is is an independent intervening cause.

The decision and the reasons therefor stated in Head Drilling Co. v. Ind. Acc. Comn., 177 Cal. 194, 170 Pac. 157, are not applicable to the present case. The facts were materially different. There the injured person, Scott, had a fracture of the leg. He was put in the care of a physician engaged by the insurance carrier of the employer. He had been discharged from the hospital, but was still acting under the supervision of the physician, and had been directed by him to begin to use the fractured leg. It was while he was obeying these instructions and in his usual habits of going about in his home, as the directions contemplated he should do, that his foot slipped on a rug. The leg, owing to the injury, was not yet capable of free motion. This caused an involuntary outward motion of that foot, which struck a table or chair near by, and brought about the additional injury for which the second award was made. There was therefore an unbroken chain of causation from the original injury to the second injury. The original injury was one of the direct causes of the second injury. Scott was following the advice of the physician to accelerate recovery, and because of his doing so he received the second injury. In such cases it is always conceded that the second injury is not produced by an independent, intervening cause. It may be an intervening cause, but is not an idependent cause. In the case at bar the original injury had no connection whatever, natural or artificial, with the transmission of the infection from the toe to the face. It was not directly or indirectly the result of treatment or advice of the physician in charge of the case, nor the necessary or natural result of the infection in the toe. For these reasons I am of the opinion that the employer was not liable for the additional award.

SUPREME COURT OF CALIFORNIA.

ENGELS COPPER MINING CO.

ຍ.

INDUSTRIAL ACCIDENT COMMISSION ET AL. (Sac. 2972.)*

MASTER AND SERVANT-DEPUTY SHERIFF, EMPLOYED BY CORPORATION, EMPLOYEE WITHIN COMPENSATION

ACT.

A deputy sheriff, employed by a mining company to keep order about its premises, killed in quelling a disturbance, acted in the course of his employment, so that his widow was entitled to compensation from his employer, despite Workmen's Compensation Act, § 8(a), defining the term "employee," and including all elected and appointed paid public officers, but excluding any person holding an appointment as deputy sheriff, but receiving no compensation from the county or municipal corporation, with a proviso that the exclusion should deprive no person so deputized from recourse for injury in the course of employment against any private person employing him.

(For other cases, see Master and Servant, Dec. Dig. § 375[1].)

In Bank.

Proceeding for compensation under the Workmen's Compensation Act by Mrs. Eva A. Smith, widow of Franklin H. Smith, the employee, opposed by the Engels Copper Mining Company, the employer. Compensation was awarded by the Industrial Accident Commission, and the employer applies for certiorari to review its action. Award affirmed.

R. P. Wisecarver and Redman & Alexander, all of San Francisco, for petitioner.

A. E. Graupner, of San Francisco, for respondents.

LENNON, J. Certiorari to review the action of the Industrial Accident Commission in awarding death benefits to Eva A. Smith, widow of Franklin H. Smith, deceased. Smith was an employee in the service of petitioner and was also a deputy sheriff. He was killed on the evening of August 4, 1918, while attempting to quell a drunken disturbance in a shack owned by petitioner and situated adjacent to its premises. The single question presented is whether or not Smith was killed while "performing service growing out of and incidental to" his employment. The return to the writ discloses the following facts:

At the time of Smith's death, petitioner was operating a mine in Plumas county. Upon its land were situated the various shops, machines, and buildings appropriate to such an operation, together with bunkhouses for the use of such of the men as did not choose to rent private houses, which were also situated on the premises. The shack where the disturbance occurred was located just below the petitioner's machine shop. It was a frame and canvas structure, and, while it does not appear who owned the land upon which it stood, it appears that the petitioner owned the frame and that the occupants were under its control; one of them, an Indian named John Smith, being in its employ.

* Decision rendered, Nov. 4, 1919. Rehearing denied Dec. 4, 1919. 185 Pac. Rep. 182.

At the time of his death, the deceased, Franklin H. Smith, was employed by petitioner as a general utility man, to look out for its interests on and off the company's property. He acted as fire warden, but his duties in this connection consumed on the average of less than an hour a day. He was required to meet trains and look after arriving employees, to remove women of questionable character from the premises, to watch prostitutes who established camps outside the company's property, and, where they were making trouble, or were supposed to be selling liquor, to have them move on. He was, moreover, required to keep down disorder from drunkenness, to settle disturbances among the men, and to do the work of a regular police officer in keeping order. Smith was also a deputy sheriff. During the period of his employment by petitioner as watchman or special officer, he had been called upon several times by the sheriff to act in civil matters, but he had rendered no service as deputy sheriff in criminal matters under the sheriff's orders. His activities were confined to matters going on around the mine, and concerning these matters it was his duty to report to the superintendent of the mine, rather than to the sheriff.

On the evening in question, a Mexican had brought some whisky to John Smith's shack, and a drunken orgy ensued, in the course of which one of the occupants of the shack threatened gun play. One of the other occupants of the shack sent for the deceased. It does not appear exactly what information the deceased received, but one Graves testified at the coroner's inquest that he saw the deceased, who said, "I have got to go down and see about a drunken Indian or buck." He then went down to the shack and was shot and killed.

These facts warrant a finding that in going to the shack to quell the disturbance the deceased was doing exactly what he was hired by petitioner to do. This conclusion is further fortified by the fact that the deceased had been expressly required to quell or prevent disturbances adjacent to the company's premises. The reason for these directions explained by the company's superintendent as follows:

was

"If a man got killed, and there was a big row, and it was an employee of the copper company, there would be a loss to us, if a court trial came up."

[1] Petitioner does not deny that the deceased had acted to quell or prevent disturbances before during the direction of the superintendent of the company. It is insisted, however, that in so doing he was "of course" acting in an official capacity as deputy sheriff. This raises the only serious question presented by the petition. Where a private company or individual employs a watchman or special officer, and in making its selection deliberately chooses an officer of the law, in order to take advantage of his authority, as did petitioner in the instant case, and where such officer performs acts advantageous to and expressly or impliedly directed by the employer, which happen at the same time to be acts which it would be his official duty to perform, is such an employee acting in the course of employment within the meaning of the Workmen's Compensation Act? Respondent relies upon section 8(a) of the statute (St. 1917, p. 835), which defines the term "employee" and includes "all elected and appointed paid public officers," but excludes "any person holding an appointment as deputy clerk, deputy sheriff, or deputy constable appointed for the convenience of the appointee, but receives no compensation from the county or municipal corporation, or the citizens thereof for the services of such duty." The section, however, provides:

"That such last exclusion shall not deprive any person so deputized from recourse against any private person employing him for injury occurring in the course of and arising out of such employment."

The question presented in the instant case involves the construction