Eby v. Industrial Accident Commission

HAHN, J.,

pro

tem.

Petitioners herein, being the wife and surviving children of one Roy T. Eby, were granted a

[281]

writ of

certiorari

to enable this court to review the findings and award of the Industrial Accident Commission of California, made in the matter of a claim filed by them under the Compensation Act and arising out of the death of the said Roy T. Eby.

The facts as they appear from the record are undisputed, and may be summarized as follows: Roy T. Eby was employed by respondent J. L. Schimmer & Company as a night foreman, the Schimmer Company being engaged in cement work. Late in the afternoon of November 27, 1924, Eby, while driving from his home to his place of employment, in his own automobile used regularly for such purpose, met his death in a collision on the public highway. Previous to the accident—whether on that day or the previous day is not clear—Mr. Schimmer, his employer, had requested him to bring to the job certain small tools belonging to his employer and which were to be found at the employer’s garage.. After the accident two hammers and a wrecking bar about three feet in length were found in the automobile of the deceased. Schimmer, his employer was unable to identify these articles as being his property, or the tools which he had requested the deceased to bring to the job with him. It appears from the testimony of witnesses who were at the home of the deceased just prior to the time he left for his place of employment that he was seen gathering certain tools together and putting them in his automobile, and that he explained to his friends that he needed these tools on the job. There is nothing in the record to show whether these tools belonged to the deceased or belonged to his employer. It does, however, appear that in the course of his employment he had the authority to purchase or to secure such tools as were needed by the workmen for certain types of work, and that his employer left to him the matter of purchasing the necessary tools or securing them otherwise. It further appears from the record that the deceased was in the habit of going to and from his work in his own automobile, which was the one he was driving at the time of the accident.