United States Fidelity & Guaranty Co. v. Industrial Accident Commission

WILBUR, J.

Respondent Commission made an award in favor of the heirs of Joe Marazzo, an employee of Bisceglia Brothers Canning Company. Marazzo was killed while driving an automobile on his return from San Felipe Rancho to San Jose. The only point made by the petitioner is based upon the claim that at the time of the accident the deceased was driving more than thirty miles an hour, in violation of the Motor Vehicle Act, and that, therefore, he was not engaged in the course of his employment. The commission found tliat the deceased was engaged in the course of his employment at the time of his death, and if we assume, as contended by the petitioner, that the fact that the deceased was violating the Motor Vehicle Act by exceeding the speed limit took him out of the course of his employment, then the finding is, in effect, a finding that the deceased was not ex

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ceeding the speed limit. The petitioner applied for a rehearing before the commission, averring “that all the evidence supports but one inevitable finding, that said automobile was being operated at a rate of speed in excess of thirty miles per hour; . . . that the death of the deceased was caused by accident which was due to driving said automobile at a speed in excess of thirty miles per hour.” In the order denying the rehearing the commission found “that the allegation that the said injury was caused by driving in excess of thirty miles per hour, in violation of the statute and orders of the employer was not substantiated by the evidence.” The commission having found, in effect, filiat the deceased was not violating the law with reference to speed, the question for our consideration is whether there was substantial evidence to support the finding. It is true that there was evidence offered tending to show that the speed exceeded thirty miles an hour. This evidence was wholly circumstantial, and consisted in showing the power and the condition of the capsized automobile, and of marks upon the highway, showing that the automobile had swerved from the paved portion thereof, first to the right and then to the left, and had skidded about ninety feet before overturning. Witnesses testified that the automobile—a heavy two-ton Hudson Super Six—in their opinion must have been going at a rate of speed in excess of thirty miles an hour. . It was conceded 'by these witnesses, however, that such marks as were found upon the highway might have been made by such an automobile going thirty miles an hour or less.