Industrial Indemnity Co. v. Industrial Accident Commission

VAN DYKE, J.

This is a proceeding through writ of review whereby it is sought to annul an award of the respondent Industrial Accident Commission. The facts may be summarized as follows: Beaster and Cooper Logging Company was engaged in logging operations in Reeves Canyon, 12 to 15 miles south and west of Willits in Mendocino County. Roland Soward had been in its employ a number of months. He was a mechanic and because he was given to drinking sprees which disabled him from working he was employed and paid on an hourly basis from time to time as he was in condition to work and his help was needed. He and Mary Soward lived at an auto court at Willits. On May 12, 1949, responsive to a request of Cooper, field manager of Beaster and Cooper Logging Company, that he repair a Dodge power

[634]

wagon being used in the company’s work, Roland and Mary Soward traveled from their home to Reeves Canyon. He and another mechanic removed the broken unit from the power wagon and loaded it into Roland’s automobile. It was Mary’s birthday and Cooper agreed that Roland could take the rest of the day off to celebrate the event with Mary. On many occasions Roland had been told to obtain needed spare parts for repair of the employer’s equipment, and Cooper on this day told him to go to Ukiah and see if the necessary parts to repair the power wagon could be obtained there. Roland and Mary proceeded to Ukiah and unsuccessfully sought the needed parts, then returned to Willits where Roland made further inquiries. Being unsuccessful, he, with Mary, went back to their home. Later in the afternoon they went to Calpella, which is south of Willits, had dinner, drank and danced, and then came back to Willits and did additional drinking at a bar close to their home. There Cooper met Roland between 12 midnight and 1 a. m. on the morning of May 13th. Roland told Cooper he thought the needed parts could be obtained at Laytonville and proposed that he go to Láytonville the next day to get them if they were to be had. He tried to borrow $10 from Cooper to pay for the parts if found and Cooper refused to advance the money, but he did say, “If you want to go to work you pick up my father-in-law [a partner in the business] and go up and get the parts tomorrow, if you want to go to work.” Cooper testified that he spoke as he did because there was nothing to be gained by giving Roland money to buy parts when he was on a drinking bout as he would spend the money to further his drinking. He testified that he would not pay Roland $2.50 an hour to go about looking for parts. Cooper’s reason for telling Roland to take Cooper’s father-in-law, Beaster, along was so that Beaster could pay for the parts if obtained. Cooper further said to Roland: “If you know where there is a part, tomorrow, any time you get around to it, pick up my father-in-law and take him up there and get it, and there is no use just going any place unless you take him with you in the shape you are in to get the part.” Roland answered, “Well, as soon as I get organized around a little bit, I will come back to work, and "come and get that part, and get it fixed for you.” Cooper testified that Roland was intoxicated at that time. He further testified that Roland said “I will be all right in the morning. I will be out to work and get the stuff.” Cooper replied “Well,