Ehrhart v. Industrial Accident Commission

TYLER, P. J.

Certiorari

to review the action of the Industrial Accident Commission in denying benefits to Y. P. Ehrhart, an employee of the respondent Stockton Delivery Company. The other respondent, Columbia Casualty Company, is interested by reason of being the insurance carrier for its corespondent.

Petitioner is a minor and has instituted the proceedings by his guardian

ad litem

for the purpose of having determined the lawfulness of the original award made in favor of respondent denying compensation to the petitioner on account of an accident resulting in a compound fracture of both bones of the left leg sustained on April 11, 1924, at Stockton, California, while petitioner was in the employ of respondent Stockton Delivery Company.

The petition shows that the respondent employer maintains a delivery service in the city of Stockton, and that petitioner at the time of the accident was employed by it as a truck driver, and was about to depart from the place of business of a certain grocery firm, one of the patrons of the company, with a truckload of groceries for delivery to the customers of that firm. While going to the front of his truck for the purpose of cranking the same, so it is alleged, petitioner was struck and injured by a passing automobile belonging to a third party. Thereafter he duly filed his application with the Industrial Accident Commission. Answer was made by defendants, respondents herein, denying that the injury arose out of the course of the employment or was proximately caused thereby, and they set up as a further defense that it was proximately caused by “skylarking” of said applicant. The application came on for hearing and was submitted. On the nineteenth day of September, 1924, the Commission made its award, finding that the applicant received the injuries while in the employ of defendant employer, but that the evidence was insufficient to establish as a fact that the injuries arose out of or were proximately caused by the employment.

In accordance with the findings the award was that applicant take nothing by reason of his claim.

[297]

A petition for rehearing was filed upon the ground that the evidence did not justify the findings; that the findings of fact did not support the order or award in that there were no findings of fact upon the subject of the course of employment or proximate causation, the findings being merely conclusions of law; that the Commission acted without or in excess of its powers in making the award, there being no evidence whatever upon which to base the same. The petition was denied.