County of Modoc v. Industrial Accident Commission

THE COURT.

The application is for a writ of review to annul an order of said commission awarding compensation to said applicant for injuries received in an accident claimed to have been “in the course of, incidental to, and growing out of his employment” by said county.

There is no real controversy as to the law. It is conceded that the inquiry here can extend only to the question of jurisdiction, and that if there is no substantial evidence to support a material finding of the commission the award must be set aside and annulled.

(Great Western Power Co.

v.

Pillsbury,

170 Cal. 180, [149 Pac. 35, 9 N. C. C. A. 466];

Employers' Assur. Corp.

v.

Industrial Accident Commssion et al.,

170 Cal. 800, [151 Pac. 423].)

It is also not disputed that the question of whether the accident occurred in the course of the employment involves a vital jurisdictional consideration, and it may be stated in the language of the county that “the principal question upon which petitioner relies for an annulment of the award in this case is that there is no evidence to support the finding that the accident arose out of and in the course of employment or while the injured employee was performing a service growing out of or incidental to the employment,” as contemplated and required by section 12 of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1913, p. 283), providing as an essential condition of the liability that “at the time of the accident, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment as such. ’ ’

A careful reading of the record compels, in our opinion, a conclusion in harmony with petitioner’s said contention. It can hardly be gainsaid that the applicant was employed as a laborer to shovel gravel, and it is admitted that he was injured while driving a team. As to this, the finding of the commission is that “while driving a team hauling a gravel wagon, the team became frightened, and applicant was thrown from the

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