Chavoya v. Industrial Accident Commission

KNIGHT, J.

This proceeding in

certiorari

was instituted for the purpose of having reviewed and annulled an award of the Industrial Accident Commission.

There is no dispute as to the facts. It appears therefrom that petitioner was injured on the night of June 29, 1935, while operating a portable electric motor mounted on an old fire truck belonging to the city of Monterey, and used by the city as part of its fire department equipment to generate electric energy for floodlights. At the time of the accident petitioner was, and for nearly twenty-five years prior thereto he had been, a member of the Monterey volunteer fire department; and since 1930 he had been employed part time by the city as electrician, at a salary of $100 a month, to keep the city’s fire alarm system in working order. In support of his claim for compensation he contended that when injured he was serving the city as a volunteer fireman, and that therefore he was entitled to the amount of compensation fixed by section 8 (g) of the Workmen’s Compensation Act. That section provides that “Each male member registered as an active fire fighting member of any regularly organized volunteer fire department, having official recognition, and full or partial support of the government of the city, town, or district, in which such volunteer fire department is located, shall be held and deemed to be an employee of such city, city and county, town or district for the purposes of this act, and shall be entitled to receive compensation from such city, town or district in accordance with the provisions thereof.” It then goes on to declare that irrespective of the amount of remuneration received by the volunteer fireman as such, and from other sources of employment, his compensation for injuries shall be computed on the basis of weekly wages of

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$38.46. The referee before whom the hearing was held found as claimed by petitioner that his case fell within the scope of said section, and fixed his compensation accordingly, at $25 a week. The commission adopted the referee’s decision and entered an award in conformity therewith. Thereupon the insurance carrier, State Compensation Insurance Fund, petitioned for a rehearing, and the merits of its petition were assigned for consideration and recommendation to another referee. He held in effect, contrary to the decision of the first referee and from the same evidence, that the provisions of the volunteer fireman section of the Workmen’s Compensation Act were not available to petitioner, and thus his compensation should be fixed on the basis of the monthly wage of $100 petitioner was receiving as maintenance man of the fire alarm system. Said referee recommended, therefore, that a rehearing be granted and that the award be reduced to the lesser sum of $14.25 a week. Adopting the recommendation of the referee, the commission granted a rehearing, and without taking any additional evidence ordered the case resubmitted, reversed its previous award, and entered a new one in conformity with the recommendations of the second referee. Petitioner then applied for a rehearing, and upon the denial thereof instituted this proceeding in