201 P. 920 | Cal. | 1921
This is a petition in certiorari to annul an award made by the Industrial Accident Commission in favor of Gus Farsais and against the petitioner, who was the insurance carrier for the San Joaquin Packing Company, the employer of said Farsais.
At the time of the injury Farsais was working for the Packing Company, engaged in sweeping the floor of a part of the premises where other employees were putting grapes into a machine as a part of their duty. While Farsais was at work an employee threw some grapes at another employee, and, his aim being bad, he missed the other person and one of the grapes hit Farsais in the eye, thereby causing his injury. Upon the evidence the commission made a finding that the injury occurred "in the course of and arising out of his employment, as follows: One employee threw some grapes at another employee and one of the grapes struck the defendant *285 Gus Farsais in the left eye, resulting in the permanent disability hereinafter described."
There was nothing in the nature of the employment in which any workmen present were engaged which required any of them to throw grapes at another. The act was either a playful or a malicious act of one employee toward another, having no connection whatever with the work in which he was engaged.
[1] The case is not distinguishable from Coronado Beach Co.
v. Pillsbury,
Although this line of reasoning has support in the decisions of some of the other states, it is contrary to our own, and it seems to us to be an unwarranted extension of the meaning of the controlling language of the constitution and of the statute defining the character of injuries that are to be compensated out of the earnings of the business in which they occur. In the Coronado Beach Company case we said: "The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work, or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment." And after a full review of many authorities on the subject it was held that the injury to the claimant caused by the act of a fellow-servant in "tickling" him while he was at work did not "arise out of" his employment. Such injuries have no connection whatever with the work the employee is doing at the time, or with the work the mischievous employee was engaged to do, or with any business carried on in the place of employment, or with any peculiar construction or characteristics of the place of employment for which the employer could be held responsible and which creates "a risk reasonably incident to the employment." All this is true of the case at bar. It is, therefore, to be decided in accordance with the same rule.
The award is annulled.
Shaw, J., Shurtleff, J., Wilbur, J., Sloane, J., and Lawlor, J., concurred. *287