Setrakian v. Industrial Accident Commission

[583]

LANGDON, P. J.

This matter comes before us upon a writ of review. Appellant seeks to annul an order of the Industrial Accident Commission made herein, denying him compensation for an injury suffered by him.

The Industrial Accident Commission found that the evidence was insufficient to establish the fact that such injury arose out of the employment. The correctness of this finding is the only question presented to us upon this record. The facts are practically undisputed. Appellant was employed at Fresno, California, as a night watchman by the defendant California Peach & Fig Growers, a corporation. That corporation had owned a packing plant in the city of Fresno, which had been partially destroyed by fire. In the ruins were figs and other salvage. Appellant and another man were engaged to patrol the plant during the night and to see that none of the property of the corporation was carried away. On the evening of April 10, 1922, according to the testimony of the applicant before the Industrial Accident Commission, he left the premises of his employer about 8 o’clock in the evening and went to a near-by store to purchase coal-oil for his lantern. This was one of his customary duties. He returned to the packing plant with the coal-oil and found that neither he nor the other watchman had any matches with which to light their lanterns. He thereupon crossed the street to a poolroom to secure matches. The street in front of the poolroom was well lighted and there were a number of persons about. The following is an account of the attack upon appellant, told in his own language: “Q. Had you gone to the pool-hall and got the matches? A. No, I had not left the sidewalk. I looked around and saw the four guys standing there. I walked to the front of the pool-hall, but the fellow was busy fixing the balls for the boys for pool, so I stood there a minute to see if these fellows came out and to see if I could get my matches, but there was nobody there and when I was going to make my turn to go back I felt someone in back of me. I stopped a minute and I looked to see if the guys came out. I was going to the back of the plant again and at the same time some guy strike me and jar me one side. I turned around to strike and I see blood on my face. I run clear to the comer after him from the pool-hall. When I run after him he run into another man. By the time I