Stevens v. Industrial Acc. Com.

LENNON, J.

The petitioner herein, the Aetna Life Insurance Company, seeks, as the insurer of certain café owners against liability under the Workmen’s Compensation Act (Stats. 1913, p. 279), to annul by

certiorari

an award made by the Industrial Accident Commission in the sum of five thousand dollars to Merle Lindlaw for herself, as the widow of John R. Lindlaw, and as guardian

ad litem

and trustee of her infant son, John Robert Lindlaw. The writ is prayed for on the ground that the evidence does not justify the findings of fact or the order of award.

Substantially stated, the facts are these: John R. Lindlaw was employed as a waiter in a café at Venice, California. On a September afternoon in 1917, one E. E. Rice, accompanied by his wife, entered the café. He was joined some little while later by his son. After the party had been served, Rice got into an altercation with one Sullivan, a waiter attending an adjoining table, during the course of which he threatened picturesquely to make Sullivan “jump over the house tops,” and drew a revolver. Sullivan grappled with Rice, as did the latter’s son, and one Ealand, another waiter, called by Sullivan to help disarm Rice. Lindlaw, serving other tables in the café, started for the scene at this juncture, calling “Come on, Brown,” to yet another waiter. As Lindlaw approached the scuffle, the revolver, still in Rice’s hand, was discharged, the bullet striking Lindlaw and killing him. Brown, following Lindlaw, caught him as he fell.

The paramount point, presented for review is whether or not Lindlaw, in starting for the scene of altercation, was performing a duty incident to his employment as a waiter in the café. In a word, if it was incumbent on Lindlaw, as a part of his duties as a waiter in the café, to help keep order and suppress commotion, then he was killed in the performance of his duties and the award must stand; and it needed only to be shown that the hazard was one to which deceased was exposed by his employment to warrant the award.

(Western Indemnity Co.

v. Pillsbury, 170 Cal. 686, [151 Pac. 398].)

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