Ocean Accident & Guarantee Corp. v. Industrial Accident Commission

RICHARDS, J.

This is an application by the Ocean Accident & Guarantee Corporation, Ltd., for a writ of review of a certain record and award of the Industrial Accident Commission, whereby Angela Sevillano Teso, Maria de Los Angeles Gejo, Antonio Gejo, Jose Gejo, and Alfonso Gejo, the widow and children of one Manuel Gejo ‘Teso, deceased, were allowed an award against the petitioner herein as the insurer of one B. J. O’Donnell, who was the employer of said Manuel Gejo Teso at the time the latter suffered the injuries which resulted in his death. There is no dispute between the parties to this proceeding over the amount of said award or over the fact that Manuel Gejo Teso met his death while in the employ of said O’Donnell and in the course of his employment, the only question presented being as to whether the petitioner herein was liable as the insurer of said O’Donnell for the amount of said award under the terms of its policy.

The petitioner herein sets forth “that there is no' dispute in the evidence that on or about March 20th, 1922, one Manuel Gejo Teso, while employed as a laborer by the defendant E. J. 0 ’Donnell, was engaged in the work of digging a tunnel for a sewer in West Sixth street in tfye city of Los Angeles, California, and that while the said deceased was actually engaged in said labor in said tunnel, and while standing in water in said tunnel he took hold of an electric bulb or electric wire used by said employer in lighting said tunnel,

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and in so doing was electrocuted and met Ms death.” The petition herein also sets forth in full the insurance policy issued by the petitioner to said O’Donnell and in force at the time of the death of his said employee. The respondents have embodied the record of the proceedings before the Industrial Accident Commission in their return and have also presented a demurrer to the sufficiency of the petition. The record does not vary materially from the averments of the petition. The insurance policy insures the said employer against liability for injuries sustained by Ms employees in the course of certain specified employments, which are set forth in certain “declarations” therein under the head of “Classification of Operations.” The policy also contains the provision that “This agreement shall apply to such injuries so sustained by reason of the business operations described in said declarations which for the purpose of this insurance shall include all operations necessary, incident or- appurtenant thereto or connected therewith whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with or in relation to such work places.” The policy also contains the provisions that “The premium is based upon the entire remuneration earned, during the Policy Period, by all employees of this Employer engaged in the business operations described in said Declarations together with all operations necessary, incident or appurtenant thereto; excepting however the remuneration of the President, any Vice-President, Secretary or Treasurer of this Employer, if a corporation, but including the remuneration of any one or more of such designated officers who are actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman. If any operations as above defined are undertaken by this Employer but are not described or rated in said Declarations, this Employer agrees to pay the premium thereon, at the time of the final adjustment of the premium in accordance with Condition C hereof, at the rates and in compliance with the rules, of the Manual of Rates in use by the Company upon the date of the issue of this policy.” Under the general title of “Declarations” and under the special heading therein of “Classification of Operations” in said policy appears the following