Mello v. Industrial Accident Commission

FINCH, P. J.

This is an application for a writ of

certiorari

to review an order of the Industrial Accident Commission denying compensation to the petitioners, the surviving wife and children of Antonio Mello, deceased, who, at the time of his death, was in the employ of St. John’s Park Company as a prune picker.

The Commission found: “The deceased was found drowned in a two-foot pool of water on the premises of the employer . . . and on autopsy examination it was discovered

[234]

that he also had had a beginning pneumonia. The drowning of deceased was not due to injury arising out of his employment with said employers. ’ ’ In this opinion no weight is given to the finding that Mello “had a beginning pneumonia.” The only question for determination is whether' there is sufficient evidence to support the finding that the drowning “was not due to injury arising out of his employment.” The evidence bearing upon this question is meager. The record contains a map of the premises, apparently conceded to be drawn according to a scale, but the scale is not given. The following is a copy of such parts of the map as are material to the question under discussion (see page 235) :

The places and objects delineated on the map will be referred to by the names appearing thereon. The whole area shown on the map is in orchard. On the day of the accident, two of the Mello children, Lillian and one of her brothers, the latter being sick, remained in the Mello house while Mr. and Mrs. Mello and some of the children went to the “old orchard” to pick prunes. During the forenoon the work in that orchard was completed and the pickers then went to the place marked “point of work,” for the purpose of picking prunes at that place. In going there Mrs. Mello and some of the children followed the road beside which the office is situated. It does not appear by what course Mr. Mello made the trip. Thereafter, about 9:30 o ’clock of that forenoon, Mello left, saying that he was going back to the house for a shaking pole and his wife asked him tó give the sick boy some medicine. Louis, another son, asked his father to bring a watermelon for lunch. Mrs. Mello testified that Lillian said that Mr. Mello took the shaking pole and a watermelon from the house and went back to the field. His body was found in the drain pool about 3 o’clock in the afternoon of that day. The shaking pole and the watermelon were found in the same pool. "While the water was shallow, as found by the Commission, in the part of the pool in which the body was lying, it was eight feet deep in some other parts. The water in the pool was the drainage from the dehydrator and contained a small percentage of lye, enough “to make a man’s eyes sting,” but “it was not strong enough to have any effect on your hands.” The position of the body was such as to indicate