221 P. 658 | Cal. Ct. App. | 1923
Certiorari to review proceedings of the Industrial Accident Commission in connection with a claim presented by Frank Kowall as applicant against Globe Cotton Oil Mills and others as defendants for damages caused by an injury received by said Kowall while in the employ of said defendants.
The questions which this court is called upon to decide are, first, whether or not the Industrial Accident Commission had jurisdiction of the matter, and, secondly, whether the percentage of permanent disability of the claimant was correctly determined by the Commission.
[1] The accident out of which the injuries to the claimant arose occurred in Mexico. That fact in itself, however, is not conclusive of jurisdiction, for the reason that section 58 of the Workmen's Compensation, Insurance and Safety Act, as amended in 1917 (Stats. 1917, p. 870), confers jurisdiction in all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the contract of hire is made within this state. [2] The primary question which the Commission had to determine was simply as to where the contract of hire was *309
entered into between the claimant and his employer. The evidence showed that the Globe Cotton Oil Mills was engaged in some construction work in Mexico, just below the border line of the state of California; that C. N. Perry was superintendent of the work and Charles Lichtenberger was the foreman; that a few days before January 25, 1922, at the border town of Calexico, in the state of California, Kowall asked Perry for employment, to which Perry replied that when he went down to the Mexican camp he would ask Lichtenberger "how he was fixed"; that Perry testified that he made it a rule never to hire a man. He further testified: "In other words, if I put a man in charge of the work it is up to him to deliver the work and it is not up to me to say who he shall carry on the pay-roll"; that thereafter Perry did talk to Lichtenberger regarding the proposed employment of Kowall, with the result that Lichtenberger told Perry to send Kowall down, following which Perry saw Kowall at Calexico and asked him if he was ready to go; that on the day thereafter Kowall did go down to the camp, and on his arrival there no conversation occurred between him and Lichtenberger other than a greeting by Kowall of "How do you do; where is my bunk?" and a response by Lichtenberger of "Make yourself at home: there is your bunk; throw in and get ready to work," followed a few days later by a fixing of the compensation to be paid to Kowall for his services. The substance of the negotiations was that at Calexico, within the state of California, Kowall asked the superintendent for a job; the superintendent said he would see about it and later told Kowall that he could go to work. Whatever the superintendent may have had in his mind regarding the propriety of letting his foreman hire his own men, or whatever arrangement the superintendent may have had with his foreman concerning the matter, is of no consequence here. So far as the workman was concerned, he applied for his employment directly to the superintendent at Calexico, and it was the superintendent who indicated to him that he could have the job. A contract is made at the place where the offer is accepted. (Bank of Yolo v.Sperry Flour Co.,
[3] The remaining question has to do with the amount awarded by the Commission to the applicant on account of his injuries. Kowall's injury was of such a nature and to so great an extent as necessitated the removal of the lens of one eye. In its then condition he had but one one-hundredth vision in that eye, and owing to the fact that previously he had entirely lost the sight in his remaining eye, his situation was apparently that of a blind man. However, with the aid of properly prepared and adjusted glasses his sight was restored to practically normal vision for most purposes. It is admitted that under the provisions of the act here in question the respondent Commission is vested with a reasonable discretion in making disability ratings and in fixing the percentage under different claims. The Commission, in accordance with the terms of the statute and of its schedule theretofore adopted, determined that the percentage of applicant's permanent disability was 19 1/4 per cent, for which he was awarded the sum of $20.83 per week for 77 weeks, or a total of $1,603.91, and which award was based upon an earning capacity of $7.50 per day.
Complaint is made that because the schedule of the Commission fixes 35 1/2 per cent as a maximum allowance for complete loss of sight without removal of the eye-ball, the allowance by the Commission of 19 1/4 per cent to the applicant, considering that he has 1/100 vision without glasses and normal vision with glasses, is excessive. The argument is that, considering applicant's age as being 48 years, even without the accident occurring, he would in all probability be compelled to wear glasses within a very short time; that because wearing glasses was somewhat inconvenient to the applicant constitutes no valid reason for awarding him anything; but, on the contrary, that the wearing of glasses would constitute a protection to his eyes, and that if he had been wearing goggles at the time the accident occurred the probabilities are that he would have suffered no injury whatsoever. In support of such reasoning the case of McNamara v. McHarg-Barton Co.,
The Commission in the instant case has made an allowance based upon the evidence and its adopted schedules. So far as this court is able to determine, there was no abuse of discretion in its findings. In such circumstances its award should be affirmed. It is so ordered.
Conrey, P. J., and Curtis, J., concurred.
A petition by petitioners to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 27, 1923. *314