Zurich General Accident & Liability Insurance Co. v. Industrial Accident Commission

LANGDON, P. J.

This matter comes before us upon a writ of

certiorari

to review the award of the respondent Industrial Accident Commission, by which respondent James Shannahan was allowed the sum of $107.34 as damages suf

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fered by him by reason of an injury sustained, according to the findings of the said commission, in the course of and arising out of his employment with the Cloman Land and Sheep Company, of which company the petitioner was the insurer.

Petitioner asserts that Shannahan was not entitled to compensation or to any of the benefits of the Workmen’s Compensation, Insurance and Safety Act, because at the time of his injury he was not employed by Cloman Land and Sheep Company and was not performing services growing out of and incidental to his employment.

On February 8, 1921, Shannahan was employed by the Cloman Land and Sheep Company to work on a ranch owned by said company and situated at Grimes, California. He testified that he was to be paid three dollars a day for his services for six days a week, together with board and lodging for seyen days. He testified that when he started his work on the ranch he “broke” three horses; that he was employed generally to do “scraping”; that he watered and fed the horses on the ranch; that he would come in with his own team and water it and then go down and water the extra stock whenever Mr. Adams, the superintendent, was not around to do it; that Mr. Adams had not instructed him to water the other horses, but he watered them as he watered his own team and Mr. Adams was aware of this and did not object thereto; that he worked eight or nine hours a day on the ranch; that he did not have any regular hours, but worked until “things were done”; that he would be engaged in watering the stock sometimes until half-past 7 o’clock. On the evening of the accident, between 6 and 7 o’clock, he took one of the horses out for water. Here is his account of what then occurred:

“I watered him, and to get him gentle, the saddle was on and the bridle and I put my foot on the saddle so the weight on the stirrup would get him gentle. Q. How old was that horse ? A. A young horse, maybe six. Q. Had it been broken ? A. Yes, we had hooked it up on the wagon a couple of times. Q. What had you to do with the breaking of that horse? A. Well, we broke it on the wagon. Q. Had you driven it? A. Yes, I was the first one to draw a line on her? Q. Who put the saddle on it? A. I did. Q. Did you ride him over to water? A. No, I walked