DISTRICT COURT OF APPEAL OF CALIFORNIA. HICKOX Et al. VS. INDUSTRIAL ACCIDENT COMMISSION OF STATE OF CALIFORNIA ET AL. (Civ. 2352.)* WORKMEN'S COMPENSATION-AMOUNT. Workmen's Compensation Act (St. 1913, p. 289) § 17, subd. 2, declares that, if the injured employee has not so worked in his employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of 300 times the average daily earnings, wages, or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar kind of employment, in the same or a neighboring place, earned during the days when so employed. A contracting painter who employed painters at the uniform wage of $2.50 per day engaged a painter who had been working intermittently to work for that wage. Shortly after he was engaged, the painter fell and received injuries, and applied for compensation. Held that, there being evidence that the ordinary wage for painters paid in that locality was $4.50 per day, the commission was justified in making an award based on such wage instead of that received by the injured painter. Application by W. J. Hickox and the New Amsterdam Casualty Company, a corporation, for a writ of review against the Industrial Accident Commission of the State of California and R. M. Searle. Writ denied. Barry J. Colding and Lilienthal, McKinstry & Raymond all of San Francisco, for Petitioners. Chris. M. Bradley, of San Francisco, for Respondents. PER CURIAM. W. J. Hickox was a contracting painter engaged in business in the city of Stockton, in the course of which he employed several other painters to whom he paid a uniform wage of $2.50 a day. The New Amsterdam Casualty Company was the insurer of said Hickox against his liability for compensation of employees under the Workmen's Compensation Act. One R. M. Searle entered the employment of said Hickox on the 24th of May, 1917, agreeing to work for $2.50 a day. He had prior to that time been working intermittently in several towns of the San Joaquin valley and elsewhere, receiving wages ranging from $2.50 a day to $5, but not staying long in any one place or remaining long in any single employment. On May 26, 1917, while in the employment of said Hickox, he fell from a ladder and received an injury * Decision rendered, Nov. 24. 1917. Rehearing denied by Supreme Court, Jan. 21, 1918. 169 Pac. Rep. 1048. to his arm, in consequence of which he made application to the Industrial Accident Commission for compensation. The evidence taken before the commission showed the foregoing facts, and also showed from the testimony of another contracting painter exclusively engaged in such work in Stockton that the standard wage scale in that city for painters was $4.50 per day. The commission awarded the applicant, Searle, compensation on the basis of a wage scale of $4.50 per day, and its award in that behalf the petitioners now seek to have reviewed by this court upon the ground that the commission in making said. award acted without and in excess of its jurisdiction. We are of the opinion that it is not within our province to review the award of the commission under the circumstances above stated. Subdivision 2 of section 17 of the Workmen's Compensation Act reads as follows: "If the injured empolyee has not so worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of 300 times the average daily earnings, wage or salary which an employee of the same class, working substantially the whole of such immediately preceding year, in the same or a similar kind of employment, in the same or a neighboring place earned during the days when so employed." St. 1913, p. 289. It would seem that the facts of this case bring it within the rule for the admeasurement of compensation above enunciated; and, there being a conflict in the evidence before the commission as to what the wage scale of painters is in the city of Stockton, it had jurisdiction to decide that matter, and with its discretion, in that respect we cannot interfere. The application is denied.. DISTRICT COURT OF APPEAL OF CALIFORNIA. SAN BERNARDINO COUNTY VS. INDUSTRIAL ACC. COMMISSION OF STATE OF CALIFORNIA ET AL. (Civ. 2364.)* 1. WORKMEN'S COMPENSATION-"ARISING OUT OF AND IN COURSE OF EMPLOYMENT." Road construction foreman who was struck by workman whom he discharged for insubordination and refusal to obey instructions, received * Decision rendered, Oct. 18, 1917. Rehearing denied by Supreme Court, Dec. 17, 1917. 169 Pac. Rep. 255. the injury "arising out of and in the course of his employment," since it Occurred while he was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it; and it arose out of his employment because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which is imposed upon him as such foreman. 2. WORKMEN'S COMPENSATION PLOYEE. CHARACTER OF EM In such case the character of the employee, whether peaceable or quarrelsome, is immaterial. Application by Homer C. Gragg for workmen's compensation, opposed by the County of San Bernardino, employer. To review an award of the Industrial Accident Commission in favor of applicant, the employer brings certiorari. Affirmed. Leonard, Surr & Hellyer, T. W. Duckworth, and John L. Campbell, all of San Bernardino, for Petitioners. Christopher M. Bradley, of San Francisco, and Daley & Byrne, of San Bernardino, for Respondents. SHAW, J. Certiorari to review an order of the Industrial Accident Commission awarding compensation to Homer C. Gragg for an injury sustained while in the employ of petitioner. The sole contention of petitioner, as presented in its brief, is that "the injury did not arise out of the employment and was not incidental thereto." In our opinion, the facts are identical with those involved in Western Indemnity Co. vs. Pillsbury et al., 170 Cal. 686, 151 Pac. 398, wherein a like award was affirmed. As appears from the record, Gragg was foreman of a gang of some eighteen or twenty men employed by the county of San Bernardino, who, under his direction, were engaged in the construction of a concrete road. He was authorized and empowered in his discretion to discharge any of the men from the work for insubordination, neglect, or refusal to perform the same in the manner directed by him. Among the employees at the time in question was one Carl Hansen, engaged in spreading concrete upon the roadway. The foreman called Hansen's attention to the fact that he was not spreading the concrete properly, and, taking the shovel, showed him how he wanted it done. Hansen resented this, saying, "To hell with you; I know how to do this," in response to which Gragg said, "If you feel that way about it, you are fired right now; I will put a man in your place;" and thereupon he called another employee whom he substituted for Hansen. Gragg proceeded with other duties and Hansen, following him, demanded his pay, to which Gragg replied, “I cannot pay you; you wll have to go up and see the timekeeper; he makes up the time." Hansen was told where to find the timekeeper, whose location was about a mile distant. Gragg again walked away, followed by Hansen, who came up behind and struck him a blow with his fist, knocking him down, and causing the injury for which he applied for compensation. [1] The only difference between the case of Western Indemnity Co. vs. Pillsbury (known as the Rudder Case) and this is that in the former the foreman was the aggressor, while in the case at bar Hansen was the aggressor, making an unprovoked attack upon Gragg for no cause other than the fact that he had been justly discharged from the work for refusing to perform it in the manner directed. Petitioner claims that in the Rudder Case the question as to whether the injury arose out of the employment was not presented or considered. In this contention counsel is in error. The court in its opinion said :— "The main contentions of the petition are that there is no evidence to show * that the injuries happened while Rudder was performing a service incidental to and in the course of his employment." The statute provides for an award of compensation for injuries sustained by employees, "arising out of and in the course of the employment"; and the language of the Supreme Court quoted was used in the sense and meaning of the statute. That the applicant's injury was sustained in the course of his employment conclusively appears from the fact that it occurred while he was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it; and it arose out of his employment because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which it imposed upon him as such foreman. McNichol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Bryant vs. Fissell, 84 N. J. Law, 72, 86 Atl. 458. "It [the accident] need not have been foreseen or expected, but after the event it must appear to have its origin in a risk connected with the employment and to have flowed from that source as a rational consequence." Kimbol vs. Industrial Accident Commission, 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595; Reithel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304. The circumstances are such as to leave no doubt that the risk of such unwarranted attack was one connected with the employment and directly traceable to the conditions under which the duty was performed. [2] The character of the employee, whether peaceable or quarrelsome, is immaterial to the question. A docile mule has been known to kick his attendant, and we assume that, had applicant in the performance of his duties, and while passing a team of mules engaged upon the work, been kicked by one of them, no question would arise as to his right to recover for injury thereby inflicted. In our opinion, there is no distinction between the facts presented in the Rudder Case and those here involved. The order making the award is affirmed. We concur: Conrey, P. J.; James, J. DISTRICT COURT OF APPEAL OF CALIFORNIA. THIRD DISTRICT CARTER VS. INDUSTRIAL ACC. COMMISSION OF CALIFORNIA ET AL. (Civ. 1709.)* 1. WORKMEN'S COMPENSATION-RIGHT TO COMPENSATION. An employer is not liable under St. 1913, p. 279, to pay workmen's compensation if the injury did not occur in the usual course of his business prior to amendment of 1917 (St. 1917, p. 831). 2. WORKMEN'S COMPENSATION-RIGHT TO COMPENSATION. A purchaser of grain on the cars, owing to a shortage of cars, casually employed applicant to help load grain left by the sellers on the platform, was not liable to pay compensation; the work not being in the usual course of his business. Certiorari to State Industrial Accident Commission. Application by Roy E. Ladd for workmen's compensation, opposed by C. T. Carter, employer. To review an award of the Industrial Accident Commission in favor of the applicant, the employer brings certiorari. Award annulled. Daly Robnett, of Alturas, for Petitioner. Christopher M. Bradley, of San Francisco, for Respondents. BURNETT, J. This case comes up on certiorari to review the findings and award of the Industrial Accident Commission in favor of Roy E. Ladd against C. T. Carter. From the return to the writ it appears that Carter was engaged in the business of buying and shipping grain; that he had purchased about sixty carloads of wheat in Modoc County f. o. b. the cars at the nearest railroad station. After the sellers (farmers) had loaded part of the grain, a shortage of cars occurred, necessitating the placing of several loads upon the railroad platform awaiting the arrival of the cars. When the required cars arrived, the farmers, whose duty it was * Decision rendered, Sept. 29, 1917. Rehearing denied, Oct. 24, 1917; denied by Supreme Court Nov. 26, 1917. 168 Pac. Rep. 1065. |