City of Pasadena v. Industrial Accident Commission

JAMES, J.

Petitioner herein brings this proceeding for the purpose of having reviewed the evidence taken before, and an award made by, the Industrial Accident Commission. The contention urged in support of petition is that the accident which caused the injuries of the complainant did not arise out of the employment in which claimant was at the time engaged. The facts are succinctly stated in the findings of the commission, from which we here quote: “Applicant was one of a small group or gang of high school students hoeing weeds under hire of defendant city during vacation, under immediate direction of one Prank Wood, a student of about the same age as applicant; that said Wood did not have authority to discharge or discipline any member of the gang and applicant so understood; that said Wood, under pretense of such authority, purported to discharge applicant for some alleged breach of rules and attempted to take away from applicant the latter’s hoe, Wood being entirely the aggressor; that applicant resisted and in

[408]

the ensuing scuffle he sustained injury to his left ankle; that it is claimed on behalf of Wood that his motives in so acting were those of playfulness and in the spirit of a joke, but the evidence is insufficient to establish that such were his motives, and this commission finds the applicant was unaware of such playful intent and believed that Wood was improperly attempting to exercise his authority as sub-foreman, and that if there had been such intent it had ceased to operate by the time the scuffle had reached the stage in which and by reason of which applicant sustained said injury.” The amount of the award entered pursuant to the findings was $106.81. The above findings as to the facts were fully supported by the testimony given before the commission.

[1]

It is made to appear that the attack upon the claimant by the subforeman was wholly unjustifiable. The cause of the difference between the two boys arose because Wood assumed to have authority to do something which the claimant knew he had no right to do, to wit, to discharge the claimant from the work. These conditions being established, the act of Wood was no different, legally considered, than would have been the act of any of the other fellow-employees working with the claimant. The decision here must be controlled, we think, by the decision of the supreme court in