Globe Cotton Oil Mills v. Industrial Accident Commission

HOUSER, J.

Certiorari

to review proceedings of the Industrial Accident Commission in connection with a claim presented by Frank Kowall as applicant against Globe Cotton Oil Mills and others as defendants for damages caused by an injury received by said Kowall while in the employ of said defendants.

The questions which this court is called upon to decide are, first, whether or not the Industrial Accident Commission had jurisdiction of the matter, and, secondly, whether the percentage of permanent disability of the claimant was correctly determined by the Commission.

The accident out of which the injuries to the claimant arose occurred in Mexico. That fact in itself, however, is not conclusive of jurisdiction, for the reason that section 58 of the Workmen’s Compensation, Insurance and Safety Act, as amended in 1917 (Stats. 1917, p. 870), confers jurisdiction in all controversies arising ont of injuries suffered without the territorial limits of this state in those cases where the contract of hire is made within this state. The primary question which the Commission had to determine was simply as to where the contract of hire was

[309]

entered into between the claimant and his employer. The evidence showed that the Globe Cotton Oil Mills was engaged in some construction work in Mexico, just below the border line of the state of California; that C. N. Perry was superintendent of the work and Charles Lichtenberger was the foreman; that a few days before January 25, 1922, at the border town of Calexico, in the state of California, Kowall asked Perry for employment, to which Perry replied that when he went down to the Mexican camp he would ask Lichtenberger “how he was fixed”; that Perry testified that he made it a rule never to hire a man. He further testified: “In other words, if I put a man in charge of the work it is up to him to deliver the work and it is not up to me to say who he shall carry on the pay-roll”; that thereafter Perry did talk to Lichtenberger regarding the proposed employment of Kowall, with the result that Lichtenberger told Perry to send Kowall down, following which Perry saw Kowall at Calexico and asked him if he was ready to go; that on the day thereafter Kowall did go down to the camp, and on his arrival there no conversation occurred between him and Lichtenberger other than a greeting by Kowall of “How do you do; where is my bunk?” and a response by Lichtenberger of “Make yourself at home; there is your bunk; throw in and get ready to work,” followed a few days later by a fixing of the compensation to be paid to Kowall for his services. The substance of the negotiations was that at Calexico, within the state of California, Kowall asked the superintendent for a job; the superintendent said he would see about it and later told Kowall that he could go to work. Whatever the superintendent may have had in his mind regarding the propriety of letting his foreman hire his own men, or whatever arrangement the superintendent may have had with his foreman concerning the matter, is of no consequence here. So far as the workman was concerned, he applied for his employment directly to the superintendent at Calexico, and it was the superintendent who indicated to him that he could have the job. A contract is made at, the place where the offer is accepted.