11 P.2d 1114 | Cal. Ct. App. | 1932
THE COURT.
Pete Novak applied to the respondent Commission to fix the amount of his compensation growing out of an injury received. A hearing was had and the Commission made an award in favor of the claimant in the sum of $131.39 against the Fireman's Fund Indemnity Company, but dismissed the application as against the employer. The indemnity company has applied to this court for a writ of review.
[1] In the early part of August, 1931, Pete Novak started to Boulder Dam to seek employment. He stopped at Lassco and temporarily took employment under Worden Forsythe as a laborer in constructing a railroad in the vicinity of Westwood. At the time he was employed nothing was said regarding transportation to or from Westwood. At the time he took employment the construction work was about one mile distant from Lassco. As the *144 work progressed the camp was moved north from Lassco. Novak continued as an employee until the evening of August 27, 1931. The next morning he quit. He went to the timekeeper and obtained a statement of his time and the amount due him. While in the timekeeper's office waiting to obtain that document he heard the engineer of the locomotive stating that one locomotive had broken down and that it was necessary for the engineer to go to Westwood to obtain some parts to repair the locomotive. Novak asked the engineer if he could ride with him and the engineer consented. The engineer was using a Chevrolet automobile that had been converted into a small truck. The automobile was the property of another laborer, but was loaned to the engineer. The engineer sat at the wheel and did the driving. The fireman sat on the front seat by the side of the engineer. Novak took a seat on the bed of the truck. There was evidence that prior to August 28th the laborers on the construction job were in the habit of riding on the locomotives as far as they ran and were then transferred to the dumping trucks and in that manner rode to their work and returned in a similar manner. Worden Forsythe paid off at the camp at stated times, but at other times they did not maintain a paymaster at the camp. Time-slips were issued by the timekeeper and were directed to the paymaster, who was at Lassco. At the time of the accident the camp was fifteen miles distant from Lassco. Lassco was on the road to Westwood and at the latter point there was another railroad on which the claimant could be taken on his way to Boulder Dam. There is no evidence whether upon application pay checks would be forwarded from Lassco to the camp in the event that one of the employees quit work. There was evidence that when the claimant left the camp he intended to go to Boulder Dam. As the automobile truck proceeded on its way it overtook another vehicle. The driver turned to one side and accelerated his speed to pass the vehicle in front. As he did so the wheels of the truck hit a chuck-hole and the jar was such that the claimant was thrown off of the truck and broke his left collar-bone. After the accident he was put on the truck and the truck continued on its way to Lassco. At that point the claimant received a check for his pay and a card authorizing admission into the hospital at Westwood. *145 He was admitted to that hospital and later was sent to Greenville in Plumas County and was there placed in another hospital.
In making its award the respondent Commission made findings which, among others, found that the accident occurred to the claimant "while employed as a laborer . . ." and while so employed he "sustained injuries occurring in the course of and arising out of his employment. . . ." This petitioner claims that said findings are not sustained by the evidence. Before proceeding it should be stated there is no evidence that any person had the authority to do so or that he attempted to direct Novak to ride on the automobile truck, or that the automobile truck was an instrumentality of the employer in any respect whatsoever except as hereinabove set forth.
The respondent Commission in support of the award cites and relies on 27 California Jurisprudence, page 383, section 85, where it is said: "When transportation is furnished to convey a workman to and from the place of work, as an incident of the employment, an injury sustained by him while going or coming, in the vehicle so furnished by the employer and under his control, arises out of and in the course of the employment. But when transportation is not furnished as a necessary incident of the employment or as a requirement imposed by the nature or the location of the work, and the use of transportation on the part of the employee is entirely voluntary and optional and bears no relation to the contract of employment, the dangers involved are not risks of the employment, and therefore an injury incurred while using means of transportation is not compensable." Continuing, the respondent Commission argues "that the nature and location of the work in the case at bar necessarily implies that the furnishing of transportation by the employer was incidental to the employment. Surely the workman could not be expected on hiring out or quitting to walk a matter of fifteen miles to the company camp or nearest town." In reply, the insurance carrier asserts that in the instant case the employer did not furnish any transportation, but that the engineer did and that the transportation as furnished was not incidental to the employment or in any way connected therewith. *146
The respondent Commission makes the claim frequently that the claimant's acts were "necessary"; but it does not quote any evidence to support those claims. There is no evidence that, if requested, the employers would not have furnished within a reasonable time and in a reasonable manner transportation to Lassco or perhaps to Westwood. But they were not requested to do so. There is no evidence that the pay check would not on request have been forwarded from Lassco or that the request was made. There is evidence that the claimant took the transportation which he did entirely of his own volition and not on the request of his employers or with their knowledge or consent. It is essential to the power to make an award and the burden is upon an applicant for compensation to show not only that the injury arose out of but also that it occurred within the course of the employee's employment. (27 Cal. Jur., p. 341.) [2] On August 28, 1931, by mutual consent and acting on the request of the claimant the contract of employment was terminated. After that moment the employers did not have, and did not attempt to exercise, any power of direction or control over the activities or movements of the claimant. There is no claim that after that moment the claimant directly did anything in furtherance of the master's business; but the sole claim is that some of his acts were incidental thereto. If so the claimant should have known the facts; the burden rested on him to bring himself within any exception to the general rule. He failed to do so and he was not entitled to compensation. Awards in favor of the claimant were annulled in Parker v. Pont, 105 L.T. 493, Enterprise FoundryCo. v. Industrial Acc. Com.,
The respondents cite and rely on Hackley-Phelps-Bonnell Co.
v. Industrial Com.,
[3] In the petition for a rehearing the respondents made the claim that the accident happened while the claimant was leaving, but while he was still on the master's premises, and they citeMakins v. Industrial Acc. Com.,
The award is annulled.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 28, 1932, and the opinion was modified to read as above; and a petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 27, 1932.