California CI Exch. v. Indus. Acc. Com.

5 Cal.2d 185 (1936) CALIFORNIA CASUALTY INDEMNITY EXCHANGE, Petitioner,

v.

INDUSTRIAL ACCIDENT COMMISSION, etc., and DOROTHY MARIE MONAHAN et al., Respondents.

S. F. No. 15455. Supreme Court of California. In Bank.

January 22, 1936. Daniel W. Burbank and C. L. Laumeister for Petitioner.

W. N. Mullen and Richard Barry, as Amici Curiae on Behalf of Petitioner.

E. A. Corten and A. I. Townsend for Respondents.

CONREY, J.

Proceeding upon writ of review to secure annulment of death benefit award made by Industrial Accident [186] Commission in favor of the widow and child of Charles Monahan, deceased.

The facts are undisputed. On January 26, 1934, the said employee, a traveling salesman, in the course of his return from a northern sales trip, arrived at Santa Rosa about 9 o'clock in the evening and secured sleeping accommodations at an auto camp, where he met death by asphyxiation, in the following manner: He was suffering from a cold and, upon retiring to the cabin assigned to him, closed all windows and doors and lighted the gas heater, a heater properly adjusted and provided with a vent to insure the escape of poisonous gas caused by incomplete combustion. When he went to bed he failed to open any of the windows or doors, or to shut off the heater. Said heater, burning over a long period without ventilation, exhausted the fresh air in the room and caused his death from carbon monoxide poisoning. The next afternoon, as deecdent had failed to put in an appearance, his cabin was forcibly entered. The heater was still burning "full tilt" and his body was found in the bed. Autopsy revealed that death resulted from the cause aforesaid.

Only two questions are presented. First, did the death of the employee occur in the course of his employment? Second, did such death arise out of the employment? Both elements must be present to sustain the award (Workmen's Compensation etc. Act, II Deering's Gen. Laws, Act 4749, sec. 6a).

[1] There seems no reason for denial that the death of the employee occurred in the course of his employment. "As a rule commercial travelers may be regarded as acting in the course of their employment so long as they are traveling in their employer's business, including the whole period of time between their starting from and returning to their place of business or home." (Bradbury on Workmen's Compensation, p. 105.) Within this rule the traveler, when overtaken by night, may reasonably seek the protection of an inn and still be regarded as acting in the course of his employment.