86 Cal. App. 2d 202 | Cal. Ct. App. | 1948
Petitioner, Industrial Indemnity Exchange, seeks review and annulment of a death benefit award to the widow and minor children of Arnold Mullen, deceased. The petition presents the single ground whether the facts support respondent commission’s finding that the injury “arose out of” and “occurred in the course of” the employment.
The undisputed evidence is: The Roberts Dairy owned and operated two ranches in Marin County—the K Ranch where dairy operations were conducted, and the Murphy Ranch where Mullen had been employed as a tractor driver for three months prior to March 8, 1947. Yancour, foreman of the K Ranch, learning that Mullen, who was an experienced dairy hand, was not working because of the rain, drove over to the Murphy Ranch Saturday afternoon, March 8, and offered Mullen a job as a milker. It was agreed that Mullen was to start on Sunday evening, March 9 at 7 p. m. at the
Our decision is controlled by the principle stated in Auto Lite Battery Corp. v. Industrial Acc. Com., 77 Cal.App.2d 629, 631 [176 P.2d 62] : “It is well settled in this state that an employer may'so limit the scope of an employee’s duties that if he steps outside the scope of those duties and undertakes to perform work which he is not employed to do he is not acting within the scope of his employment. (San Francisco & S. Co. v. Industrial Acc. Com., 201 Cal. 597 [258 P. 86]; Robert Sherer & Co. v. Industrial Acc. Com., 175 Cal. 615 [166 P. 318] ; Williamson v. Industrial Acc. Com., 177 Cal. 715 [171 P. 797]; Ruff v. Industrial Acc. Com., 123 Cal.App. 168 [11 P.2d l7].)”
In that case this court noted the distinction as to the liability of the employer between cases of injury of an employee while doing an act entirely outside the scope of employment and doing an act within the scope of employment in a forbidden manner.
“The evidence is without conflict and shows beyond question that the captain was killed while engaged in work entirely beyond the scope of his employment; that it was done without the knowledge or consent of the employer, and was not a case of emergency which called the captain in his employer’s interest to go beyond the scope of his employment.” And see cases cited page 600.
Award annulled.
Goodell, J., and Dooling, J., concurred.