Hufstetler v. Department of Industrial Relations

FINCH, P. J.

The petitioner seeks the annulment of an order of the Industrial Accident Commission denying compensation for injuries sustained by him in an automobile accident. The Commission found that, at the time of the accident, the petitioner was employed as a salesman by Weber & Beckett, whose insurance carrier was the State Compensation Insurance Fund, “all of whom were then subject to the provisions of the Workmen’s Compensation Insurance and Safety Act of 1917” [Stats. 1917, p. 831], but that “the evidence does not establish as a fact that the applicant received an injury arising out of and in the course of his said employment.” It appears without dispute that the petitioner was seriously injured in the accident. He

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contends that the evidence establishes, without conflict, that his injuries arose out of and in the course of his employment. It must be conceded that there is no direct conflict in the evidence on the issue in controversy, and the question is whether the Commission was bound to accept as true certain testimony given by the petitioner.

Weber & Beckett were engaged in the business of selling automobiles in the city of Modesto. The petitioner was one of their salesmen. While he was guaranteed a minimum monthly salary, it appears that he was allowed a commission on the sales he made. Weber & Beckett did not direct his activities, but he was required to report his “prospects.” He had listed a man of the name of Mullen as such a “prospect” and had endeavored to interest him in the purchase of an automobile. Mullen was employed in office work at Hetch Hetchy Junction, about forty miles from Modesto, and, according to petitioner’s testimony, “worked until four or five o’clock” in the afternoon, and “you couldn’t see him when he was working at all.” During the afternoon of July 31, 1929, Milton W. Terrill, representing a finance company, called at Weber & Beckett’s place of business, but, learning that Beckett, the manager, was out of town, he went a few miles into the country with the petitioner, who there endeavored to sell an automobile to a man whose name neither could remember at the hearing before the Commission. After their return to Modesto they drove along the road toward Hetch Hetchy Junction to a point about twenty-three miles from Modesto, where, in rounding a curve on a grade, their automobile was wrecked and both of them were seriously injured. Both trips were made in Terrill’s automobile, which was an inclosed ear, that of the petitioner being an open roadster.