Alexander v. Workmen's Compensation Appeals Board

California Court of Appeal Jun 5, 1968 No. Civ. 894Published

Before: Stone

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Holding. The court held that the Workmen's Compensation Appeals Board (W.C.A.B.) may properly reject direct testimony in favor of conflicting circumstantial evidence and is not required to make specific negative findings regarding witness credibility.

Issues

Whether the W.C.A.B. may reject uncontradicted direct testimony in favor of inferences drawn from circumstantial evidence.
Whether the W.C.A.B. is required to make specific findings regarding which portions of testimony it disbelieves.
Whether the W.C.A.B.'s findings were supported by substantial evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well established that the trier of fact may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses.”

“negative findings need not be made when the W.C.A.B., as the trier of fact, specifies by its findings the evidence upon which its decision rests.”

STONE, J.

This case is before us on a petition for writ of review of the “Opinion and Order Denying Reconsideration” of the Workmen’s Compensation Appeals Board (hereinafter called W.C.A.B.). Just two witnesses testified at the' hearing before the referee, petitioner, the widow of Jimmy Wayne Alexander, and her brother, Robert L. Harper, the decedent’s employer and one of the respondents herein.

Jimmy Wayne Alexander was killed in an automobile accident occurring in the early morning hours of September 10, 1966, on Moffat Road near the City of Manteca. He had been employed by Harper’s firm, Modesto Drywall Company, from 1965, when the company began operations', until his death in September .1966, except'for a leave of absence during July and August 1966. when he worked' for D. C. Vient in Las Vegas, Nevada. He was employed as. foreman,' entrusted with broad managerial duties, .including bidding on jobs, and was furnished' a gasoline credit card for use in the business and a company pickup truck which he was driving at the time of his injury and death.

For several months prior to the accident Modesto Drywall was in financial trouble, apparently because of difficulties in obtaining jobs; it finally went out of business in February 1967. Alexander told Harper he knew of a possibility of obtaining work on a large housing project in Seattle, Wash-, ington. They discussed the matter during the week preceding the accident and, after a talk on the evening of September 9, Alexander decided to go to Seattle to secure details on the job,: hoping that Modesto Drywall could .bid on the job and secure the work." ■ " . '

-.Mrs. Alexander testified that her husband came home on"the eyenmg of'the 9th and told her he was'going to Seattle to'bid on the job, that .tie was to .drive .to Éán Francisco arid titiere catch a plane which was to leave at 2 :25 a.m. He tiad no'plane

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reservation as he had been told when he called San Francisco that none was necessary on the particular flight. Alexander left Modesto around 11:30 on the night of September 9, and was killed in an automobile accident shortly after midnight.

Respondents produced no evidence; they rely upon the cross-examination of Mrs. Alexander and her brother, Mr. Harper. The hearing referee found: “Employee died"on September 10, 1966. Death was not caused by injury arising out of and occurring in the course of his employment. ’ ’

Alexander v. Workmen's Compensation Appeals Board

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STONE, J.

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