Nurmi v. Industrial Accident Commission

MARKS, J.

For about seven years prior to February 10, 1933, Chester T. Moore had been employed as a truck driver, salesman, delivery-man and collector by Nurmi’s Bakery in Fresno. His duties were to solicit sales of and make delivery of bakery products and mayonnaise and make collections. His route ran from Fresno along the highway paralleling the railroad tracks and into Tulare County.- He usually left the premises of his employer at about 4:30 o’clock in the morning, returning late in the afternoon with collections amounting to between $50 and $70. He usually traveled alone.

He was required to make deliveries in premises which were dark and secluded. For a considerable time he had been accosted daily by from fifteen to twenty men who asked gifts of bread. A bakery truck had been held up near the town of Goshen on his route and on numerous occasions bread had been stolen from his truck. He testified further concerning those requesting bread, “If you don’t give them a loaf they act as if they would knock you in the head, and they give you a cussing if there is two or three of them. They are bad business.” About a year before he was injured he provided himself with a 410 gauge breech-loading single barrel shotgun. The bottom of the seat of his truck was a metal plate and upon it rested two separate leather cushions. He kept the shotgun between the cushions with the top of the barrel down and the muzzle pointing toward the dash. He testified that he had procured the gun to protect himself from injury and his employer’s property from being stolen. Neither Nurmi nor his wife, the owners of Nurmi’s Bakery, had any knowledge that he carried this gun. Lynn L. Huron, an employee of Nurmi’s Bakery,

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knew that appellant carried the gun for the protection of himself and his employer’s money and property and that the gun was loaded. He also knew the place and position in which the gun was carried in the truck. Huron bore the title of route foreman for Nurmi’s Bakery and had charge of all route drivers.

On February 10, 1933, Moore drove his truck off the left-hand side of the highway upon which he was traveling to make a delivery at the store of a customer. After making the delivery he re-entered the truck and proceeded to the left edge of the highway, where he stopped, slid over to the right side of the seat, looked back to see if there were any other drivers approaching from the rear and slid back to the left side of the seat preparatory to driving onto the highway. In sliding along the seat the shotgun was cocked and discharged, the charge striking him on the outside of one of his legs about three inches below the knee, causing powder burns and a gunshot wound which became infected. The Industrial Accident Commission awarded compensation to Moore and this proceeding is taken to review this award.