25 P.2d 22 | Cal. Ct. App. | 1933
On the evening of September 13, 1932, L.V. Wilson was hired as an orange picker by the Garden Grove Mutual Orange Association. His hours of employment were to be from 7 o'clock in the morning to 4:30 o'clock in the afternoon of each day, with one-half hour off for lunch. His compensation was to be five cents for each box of oranges picked. His employment was to commence on September 14, 1932. On the morning of that day he called at the residence of the field foreman of the Garden Grove Mutual Orange Association and learned the location of the orchard in which he was to pick and was given a time-book to deliver to the picking boss. He reached the orchard at about five minutes before 7. A public road bounded the orchard on the south. Wilson parked his car on the south side of the road, crossed it, laid his picking sack on the ground, and gave the time-book to the picking boss who assigned him a ladder which he laid on his picking sack. The picking boss told him that as there were no picking boxes delivered at the orchard he would have to await their arrival before commencing work. Wilson crossed to the *133 south side of the road and joined in conversation with about ten other pickers who were standing just inside its south edge. While Wilson was thus engaged, and after 7 o'clock and before the boxes arrived, another orange picker drove up and struck him with his automobile, breaking one of his legs.
Upon this undisputed evidence the Industrial Accident Commission made Wilson an award against petitioner, which was the insurance carrier for the Garden Grove Mutual Orange Association. A petition for rehearing was denied and this award is before us for review.
Section 21 of article XX of the Constitution authorizes the legislature to create a system of compensation for workmen injured "in the course of their employment". Under this grant of power the legislature adopted the Workmen's Compensation, Insurance and Safety Act of 1917. Section 6 of this act as amended (Stats. 1929, p. 430) limits the liability of the employer to injuries "arising out of and in the course of the employment. . . . Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment."
[1] It is well established that there must be some causal connection between the injury and the employment so that the injury may be found to have resulted from some risk of the employment. In California Casualty Indemnity Exch. v.Industrial Acc. Com.,
"To entitle the representative of the deceased to recover in this case it must be shown that the employee, at the time of the injury, was not only `performing service growing out of and incidental to his employment, and acting within the course of his employment', but also that the injury was proximately caused by such employment. In the very broadest sense, of course, it is true that the injury to the decedent grew out of and was incidental to his employment, since it was necessary that he should return from the place where he lunched to the truck. The right to an award is not alone founded upon the fact that such is the case, but upon the fact that the service the employee is rendering at the time of the injury grows out of and is incidental to the employment. For instance, it is the rule *134
that an employee going to and from his place of employment is not rendering any service, and begins to render such service only when he arrives at the place of his employment, and proceeds to use some instrumentality provided, by means of which he immediately places himself in a position to perform his task. (Ocean Acc. etc. Co. v. Industrial Acc. Com.,
[2] In the instant case Wilson was required to report for duty at 7 o'clock, which he did. He could not start the active duties of his employment because of the failure of his employer to have picking boxes ready for use by the workmen. He was told to wait, and from 7 o'clock in the morning it must be considered that he was under the control of his employer while he remained at or near the place of employment.
The question remains: Was there any causal connection between the employment and the injury, or, in other words, did the injury result from a risk of the employment?
It must be conceded that Wilson was required to remain near the grove in which he was to pick while waiting for the boxes. He was not required to go into the street, nor did any of his duties require him to loiter in the highway in which he was injured. Nevertheless, he chose this road as his waiting place and was injured by an automobile being driven along this street. We have concluded that the injury must be attributed to a "risk of the street" and not to a risk of employment.
In Frigidaire Corp. v. Industrial Acc. Com.,
The case of Balboa Amusement Producing Co. v. IndustrialAcc. Com.,
The award is annulled.
Jennings, J., concurred. *137