California C. I. Exch. v. Indus. Acc. Com.

This is a proceeding to review and have annulled an award of the Industrial Accident Commission against petitioner, the insurance carrier of the Union Ice *Page 434 Company, employer of Charles W. Young, deceased, made in favor of his widow and his minor son, in the maximum amount for death benefit allowed under the Compensation Act.

The facts are undisputed. Petitioner's statement thereof, accepted by the respondents, is its follows: "The Union Ice Company is engaged in the manufacture and delivery of ice in Los Angeles and vicinity, with plants at Hollywood and elsewhere. Delivery routes are laid out by its route foreman to enable its customers to be supplied in the most efficient and economical manner, and so laid out as to avoid the necessity of covering the same streets twice in any one day. Each driver is assigned to a designated route and one that he can cover in an average day, usually fairly early in the afternoon, and is through for the day and at liberty to go home as soon as the assigned route has been covered. The drivers are given more or less leeway in the time and manner of covering the route, and are expected to get their lunch during the day. No specified hour is set aside for lunch, the drivers being allowed to procure lunch as and whenever desired, in a public restaurant, at home or elsewhere.

"The deceased was an old employee of the Union Ice Company, thoroughly familiar with the particular route assigned to him. Frequently he covered a part of his route which would bring him to a cafeteria located at Palm Avenue and Santa Monica Boulevard, Sherman, about 7 A. M., made a delivery of ice to the cafeteria, and got his breakfast, then covered another portion of the route, returning to this same cafeteria about noon for lunch. Neither his assigned route nor the requirements of his customers necessitated his return to the cafeteria during the noon hour, this return being for the sole purpose of obtaining his noonday meal. As stated, he could have gone home for lunch, had he so desired, or obtained it elsewhere, the only requirement being that he make his route in average time, with considerable latitude to him. If he wanted to get home very early, he might hurry over his route or otherwise could take his time.

"On the day of the accident, as on frequent other occasions, the deceased was accompanied over his route by his minor son, the respondent Merle Wayne Young, the two *Page 435 taking breakfast at the cafeteria at which time a delivery of ice was made there, and then returning to the cafeteria for lunch at about 11:30 A. M., and for no other purpose, the deceased having no business to transact in that vicinity at that time for his employer. The truck was parked on the opposite side of the street, and the two crossed the street to the cafeteria for lunch. After luncheon at the cafeteria, the father left the son in the cafeteria, and went on down the street to a cigar-store to get a 'smoke.' The boy crossed the street in safety to the truck, but the father, upon starting across after coming out of the cigar-store, was run down and killed after proceeding but a little way into the street, and before he crossed to the side on which his truck was parked."