County of San Bernardino v. Industrial Accident Commissiom

SHAW,

J.

Certiorari to review an order of the Industrial Accident Commission awarding compensation to Homer C. Gragg for an injury sustained while in the employ of petitioner.

The sole contention of petitioner, as presented in its brief, is that “the injury did not arise out of the employment and was not incidental thereto.” In our opinion, the facts are identical with those involved in

Western Indemnity Co.

v.

Pillsbury,

170 Cal. 686, [151 Pac. 398, 10 N. C. C. A. 1], wherein a like award was affirmed.

As appears from the record, Gragg was foreman of a gang of some eighteen or twenty men employed by the county of San Bernardino, who, under his direction, were engaged in the construction of a concrete road. He was authorized and empowered in his discretion to discharge any of the men from the work for insubordination, neglect, or refusal to perform the same in the manner directed by him. Among the employees at the time in question was one Carl Hansen, engaged in spreading concrete upon the roadway. The foreman called Hansen’s attention to the fact that he was not spreading the concrete properly, and, taking the shovel, showed him how he wanted it’ done. Hansen resented this, saying: “To hell with you! I know how to do this.” In response to which Gragg said: “If you feel that way about it,

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you are fired right now. I will put a man in your place”; and thereupon he called another employee whom he substituted for Hansen. Gragg proceeded with other duties and Hansen, following him, demanded his pay, to which Gragg replied: “I cannot pay you. Tou will have to go up and see the timekeeper; he makes up the time.” Hansen was told where to find the timekeeper, whose location was about a mile distant. Gragg again walked away, followed by Hansen, who came up behind and struck him a blow with his fist, Imocking him down and causing the injury for which he applied for compensation. .

The only difference between the case of