Truck Insurance Exchange v. Industrial Accident Commission

PEEK, J.

Petitioner seeks to review an order of the respondent commission awarding benefits to respondent Patterson who, while working on his employer’s farm, was hit by a stray bullet fired from a .22 rifle by a 10-year-old boy on a neighboring farm.

Two contentions are made by petitioner: (1) That the injury did not arise out of the employment and was not proximately caused thereby; and- (2) that the commission erred in making an award for future medical treatment.

It would seem wholly unnecessary to discuss in detail the numerous cases from other jurisdictions cited in support of petitioner’s contention that the injury is not compensable, and that therefore the rule expressed in

Associated Indent.

[461]

Corp.

v.

Industrial Acc. Com. (Zurbuchen),

43 Cal.App.2d 292 [110 P.2d 676], is controlling. Suffice it to say that while we agree with petitioner that factually the ease is substantially on all fours with the present one, we cannot agree that the Zurbuchen case has not been overruled and hence is controlling.

That case was decided in 1941. In 1950 the First District Court of Appeal, Division One, was presented with a very similar question in the ease of

Industrial Indem. Co.

v.

Industrial Acc. Com. (Baxter),

95 Cal.App.2d 804 [214 P.2d 41]. There the court, speaking through Mr. Justice Bray, ably discussed with critical particularity all of the cases in this state, beginning with

Kimbol

v.

Industrial Acc. Com.,

173 Cal. 351 [160 P. 150, Ann.Cas. 1917E 312, L.R.A. 1917B 595], wherein this question had been presented. The decision notes that while our courts generally have labored the problem at length in an attempt “. . . to show that the actual substance which injured the employee was an instrumentality of the employer, a real analysis of the facts and rulings in these cases shows that actually the courts were allowing compensation because his employment brought the employee into what became a position of danger even though that danger was not, and in many instances could not, have been foreseen either by the employer or employee, and even though the risk was not peculiar to the particular location.” (P. 810. See also 18 Cal.L.Rev. 562.)