Fidelity & Deposit Co. v. Industrial Accident Commission

HENSHAW, J.

By this review petitioner seeks to have an award given under section 84 of the Workmen’s Compensation Act of 1913, as that act was amended in 1915, declared invalid. W. D. Head, president and superintendent of the Head Drilling Company, a corporation, was killed. The

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award was made to his widow. There is thus within this case the question of the power of the commission to make any award in case of death. But as that question is not necessary to the decision of this case, and as it is now under the consideration of this court in another case, it is here passed over without determination.

The question presented is whether or not Head was guilty of willful misconduct when he met his death. (Workmen’s Compensation Act, sec. 12a, subd. 3.) This question is a jurisdictional one, and therefore subject to review by this court.

(Great Western Power Co.

v.

Pillsbury,

170 Cal. 180, [149 Pac. 35].) Over the facts there is no dispute. In the course of his employment Head, who was at Taft, was directed to go to Los Angeles on the work of his company. He hired an automobile, with a driver, to take him from Taft to Bakersfield, at which point he proposed to embark on a train for Los Angeles. The distance between Taft and Bakersfield is about forty miles, and he had four hours of time to make the run and catch his train. Leaving Taft he displaced the driver and took the wheel himself. It was in the night-time. The commission finds the following:

‘ ‘ That at said time he was driving the automobile at a rate of speed from 35 to 45 miles per hour. That said rate of speed was not entirely safe in view of the condition of the road at the place of the accident, but that the evidence is insufficient to establish that such speed was unusual according to the usual custom of drivers of automobiles in that vicinity, or that it was so in excess of customary rates of speed as to amount to speed mania, or that said excessive speed amounted to more than ordinary negligence or amounted to foolhardiness or daredeviltry. That the act of the deceased in driving at said rate of speed was not in violation of any instructions, rules or orders made by the said employer, the W. D. Head Drilling Company, for the safety of its employees or any of them.”