Fidelity & Casualty Co. v. Industrial Accident Commission

VAN DYKE, P. J.

Petitioners herein seek review and annulment of findings and award of the respondent commission in which death benefits were awarded the widow and minor children of Edward de Turbiville, who died while employed by Morrison-Knudsen Company as a millwright at Surabaja, East Java, Indonesia. Two questions are presented: 1. Is there substantial evidence in the record to support the decision of the commission that the decedent died as the result of an industrial injury? 2. Is there substantial evidence in the record to support the decision of the commission that good cause to reopen was shown ?

Decedent was employed in a construction camp in Indonesia. The contract of employment provided inter alia as follows: For the performance of services as a millwright in Indonesia, in connection with the performance by Morrison-Knudsen Company of a contract to construct a cement mill and auxiliary facilities, including a dock. Although he was a millwright, he was required to do any other work within his capacity to which he might be assigned. He was paid a monthly salary of $700, plus board, lodging and medical services. The term of employment was for such period as the employer should desire his services, with a proviso that the employee could terminate after 28 months of continuous employment. He was to work such hours and shifts as might be required by the employer. The employer could call the

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employees to work at any time. They were theoretically on twenty-four hours’ duty though regular hours were assigned; de Turbiville’s regular shift hours were from 6:30 a. m. to 4:30 p. m. The employee was required to use the facilities in regard to board, lodging and medical services unless given a cash allowance in lieu at the employer’s option. The employment contract called for transportation to and from Indonesia, but there was a provision that if de Turbiville quit, or was discharged for cause within the 28 months’ period he would be cut loose at the jobsite, his pay would cease, and transportation back to the United States would not be furnished.

Although the construction of the dock was a part of the work to be done by the employer under its general construction contract, the doing of nearly all of the work had been sublet to a Dutch firm, which at the time of de Turbiville’s death had completed its work. There remained to be done by he employer, however, a small amount of work. The dock construction project was described by one witness as having been 95 per cent completed. The worksite for de Turbiville was about