This is a proceeding to review a decision of the respondent commission denying compensation on account of the death of one Elden J. Gagnebin, who was the husband of one of the petitioners and the father of the other.
The respondent Gill oрerated several ranches in Madera and Fresno Counties and also a feed yard at Calwa, near Fresno. For some two years prior to the time here in question Elden J. Gagnebin was employed as a farm laborer by Gill and resided upon one of these rаnches, which was located about sixteen miles east of the city of Madera. Upon this ranch, which consisted of about 5,600 acres, there were 550 head of cattle for which water had to be pumped by means- of a gasoline engine. One A. C. Thompson was mаnager and foreman for all of the Gill properties in these two counties, and resided on another ranch some distance west of Madera. Under instructions from Thompson, Gagnebin went to the feed yard at Calwa on the morning of October 16, 1933, and spent the day there assisting in loading fertilizer. Leaving there at 6 P. M. he went to Madera,
After a hearing the respondent сommission found that Gagnebin was in the employ of the respondent Gill at the time in question, that the third respondent was Gill’s insurance carrier, that both employer and employee were subject to the provisions of the Workmen’s Compensation, Insurance and Safеty Act, and that the said employee had suffered injuries in a traffic accident on the highway about one and one-half miles from Madera. It was further found, however, that said injury did not arise out of or in the course of his employment and that the errand upon which the emрloyee was engaged at the time of the accident was personal and not incidental to any service required by his employment. A rehearing was asked for on three grounds, namely: 1. That fraud on the part of the insurance carrier resulted in the petitionеrs being unrepresented by counsel at the hearing, in that an adjuster for the insurance company called upon the petitioner Lois Gagnebin and advised her, in effect, that she did not need a lawyer, that no one was fighting the case, that there would be no controversy, and that she would receive compensation. 2. That the evidence does not justify the findings of fact. 3. The discovery of new evidence. Attached to the petition for rehearing is an affidavit by A. C. Thompson, manager for respondent Gill, containing a number of material facts which were not brought out at the hearing. The respondent insurance company answered the petition for rehearing, and included an affidavit, the effect of which was to deny that any fraud was used in the respect claimed. A rehearing was denied and this proceeding followed.
The essential question here presented is whether the injury suffered by the deceased arose out of or in- the course of his employment. It is undisputed that the direct way from Calwa to the ranch on which the deceased lived was over a road leading straight north from Fresno, a part of which was paved and a part of which was an ordinary country road, while the highway to Madera runs northwesterly from Fresno. The difference between the two routes, in mileage, is not disclosed by the reсord. At the hearing before the referee, petitioners were not represented
In London G. & A. Co. v. Industrial Acc. Com.,
In Marks v. Gray,
The general rule that an employee is not within the provisions of the act while traveling to and from his place of employment is not applied in cases where the employee, in the course of his employment, is obliged to travel from one uiace of employment to another. (Federal Mutual Liabilities Ins. Co. v. Industrial Acc. Com.,
Examining the evidence before the respondent commission in the light of these rules, the following appears. The loading of fertilizer at Calwa. was an annual occurrence and took about twenty days. In order to facilitate the same the manager of the ranches took for the purpose men who were familiar with operating the loading machinery. To this end he instructed the deceased to assist in this work. October 16, 1933, was the first day on which this work was done during that season and the deceased worked at Calwa from 6 o’clock A. M. to 6 o’clock P. M. The men thus engaged were paid an extra compensation for this period because the work required longer hours and to cover the cost of transportation or board and room at or near Calwa. While it was optional with most of the men whether or not they would go back and forth, the deceased was the only employee on the ranch where he lived and, since it was necessary for him to be there to run the engine to pump water for the cattle, thе manager instructed bi-m to return to the ranch each night and attend to his duties there. On the morning of -this day the manager had taken another employee named Buckalew, who lived at the manager’s home, to Calwa to take part in this work. About noon on October 16th thе deceased told the manager that two of the tires on his automobile were in such bad shape
At the time in question the deceased was proceeding from one place of employment to another upon the instruction of his superior. He had been ordered to come by way of Madera and to bring a fellow-employee. At Madera he wаs
For the reasons given the findings and decision of the commission are annulled and the matter is remanded for further action in accordance with the views herein expressed.
Jennings, J., concurred.
Marks, J., being absent, did not participate herein.