Fidelity & Casualty Co. of New York v. Industrial Accident Commission

CASHIN, J.

A proceeding in

certiorari

to review an order of the Industrial Accident Commission awarding compensation for the death of Alexander S. Gardiner.

The petitioner was the insurance carrier for a copartnership known as Balfour, Guthrie & Company, by whom the deceased was employed at the time of his death.

The deceased had been an employee of the insured for several years and in June, 1926, was sent by his employers from San Francisco to Valparaiso, Chile, to represent them at a nitrate conference to be held in the latter city.

Although the primary object of the trip was to attend the conference, the deceased was also instructed to visit various concerns in South America with whom his employers were interested in a business way.

Pursuant to his instructions, the employee left San Francisco on June 12, 1926, stopping at several places en route to Valparaiso, where he arrived on July 8th, and where he remained until July 18, 1926.

Upon the completion of his duties there he visited several places and ports where nitrate is produced and shipped, arriving at Ilia on July 25th, where he showed signs of illness, and at Arequipa, Peru, on July 27th, at which place he was taken to a hospital, where his death occurred on August 11, 1926.

[508]

According to the diagnosis of physicians by whom he was treated, his death was caused by typhoid fever.

It was found by the Commission that the employee sustained an injury arising out of and in the course of his employment, to wit, the contraction of the disease mentioned, which was the proximate cause of his death; and made an award to his widow.

It is contended by petitioner that the disease contracted by the deceased was due to a risk of the commonalty, and as a consequence did not arise out of nor was it proximately caused by the employment, and, further, that at the time the disease was contracted the deceased was not performing a service for his employers.