Allen v. Industrial Accident Commission

PRESTON, J.

Petitioners (an employer and his insurance carrier) seek the annulment of findings and temporary partial disability award made by respondent commission in favor of respondent Jack Duley, who sustained a fracture of the left heel bone while performing work connected with erection under the veterans administration of the United States of the veterans hospital on premises at Port Miley, a military reservation situate within the territorial bound

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aries of the city and county of San Francisco. Petitioners contend that the California Workmen’s Compensation Act (Stats. 1917, p. 831, and amendments thereto) is not applicable and that respondent commission was without jurisdiction in the matter because said territory where the contract of hire was consummated, work performed and injury received, was under the exclusive jurisdiction of the federal government. (See

Standard Oil Co.

v.

State of California,

291 U. S. 242 [54 Sup. Ct. 381, 78 L. Ed. 775] ;

Murray

v.

Joe Gerrick & Co.,

172 Wash. 365 [20 Pac. (2d) 591];

Murray

v.

Joe Gerrick & Co.,

291 U. S. 315 [54 Sup. Ct. 432, 78 L. Ed. 821, 92 A. L. R. 1259] ;

People

v.

Mouse,

203 Cal. 782 [265 Pac. 944].)

Respondents make no effort to refute this contention but they assert that in the proceedings before the commission petitioners failed to sustain the burden of establishing it as affirmative defense. Petitioners set up the defense by their answer. On the hearing the testimony of the employee and other undisputed evidence showed that the contract was consummated, the work performed and injury received at Fort Miley, as aforesaid. The commission found this to be the fact, but nevertheless assumed jurisdiction and made said findings and award in favor of respondent employee. Petitioners thereupon sought a rehearing for the purpose of producing in evidence a certified copy of the decree of condemnation by which the premises known as Fort Miley passed into the hands of the United States. The commission refused to grant the rehearing.