Enterprise Dairy Co. v. Industrial Accident Commission

THE COURT.

A hearing of this proceeding by this court was granted for the purpose of further considering it in connection with the case of

London Guarantee & Accident Co.

v.

Industrial Acc. Com., ante,

p. 239 [259 Pac. 1096], in which we have this day filed an opinion affirming the award. We are satisfied with the opinion written by Mr. Presiding Justice Works when this proceeding was before the district court of appeal, and we hereby adopt said opinion as the opinion of this court:

“The facts involved in this controversy are shown by a stipulation entered into at a hearing before the Industrial Accident Commission. It was stipulated that one William D. Wilson was in the employ of petitioner Dairy Company as an automobile truck driver, and that, in the course of his employment, ‘the employee was injured in the following manner: after having driven his automobile into a garage of the employer to load said automobile with milk, and while he

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was engaged in loading the said automobile with milk from a refrigerator belonging to the employer in said garage, an earthquake occurred, and the brick wall of an adjoining two-story building fell through the roof of said garage causing the employee to receive severe contusions over the spine and left chest posterior with multiple lacerated wounds of his hands and arms from broken glass, the said glass coming from milk bottles which he was loading and had loaded. ’ As a result of the hearing an award was made allowing compensation to Wilson for the injuries mentioned in the stipulation. Petitioners, after asking for a rehearing before the Commission, and upon the request for a rehearing being denied, applied to this court for the writ of review and the writ issued.

“The sole question presented for our determination is whether Wilson’s injuries arose out of his employment. The award was for a small lump sum, payable forthwith. If it be granted for the sake of argument, without deciding, that a part of the injuries were compensable and that the remainder were not, no complaint is made of the failure of respondent Commission to segregate the two parts. Under such circumstances, indeed, we should doubtless be compelled to assume that the Commission allowed compensation only for the compensable injuries. Be that as it may, however, considering alone the fact that there is no objection to a lack of segregation, if any part of the injuries were compensable the award must stand. Consequently, we shall henceforth disregard that rather uncertain portion of the stipulation relating to ‘severe contusions over the spine and left chest posterior. ’ Even with this exclusion the stipulation may not be regarded as a model of certainty. After the exclusion the concord of the parties may be rendered thus: While the employee, after driving his truck into a garage belonging to his employer, was engaged in loading bottled milk upon the truck, taking the bottles from a refrigerator located in the garage and also belonging to the employer, ‘an earthquake occurred, and the brick wall of an adjoining two-story building fell through the roof of said garage, causing the employee to receive . . . multiple lacerated wounds of his hands and arms from broken glass, the said glass coming from milk bottles he was loading and had loaded. ’ In solving the problem here presented we