Emp'rs Liab. Assurance Corp., Ltd., of London v. Indus. Accident Comm'n

KERRIGAN, J.,

pro tem.

Application for a writ of review to annul an award of the Industrial Accident Commission.

On February 20, 1919, June Boatman, an employee of one Freeman A. McKenzie, conducting business -under the name of City Garage, at San Pedro, California, was injured by the overturning of an automobile which he was driving, from which injuries he died. On said day he had been directed by his employer to tow a disabled automobile from

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San Pedro to Los Angeles and, after delivering it at a given address, to return immediately. He proceeded to carry out his instructions and, with a companion named Glen Park, whom he had invited to accompany him, he executed his commission and started on the return journey. Instead of following the only direct and regular road of travel, which was by the way of Harbor boulevard, he with his companion departed therefrom, going first out of his proper course about three miles in an easterly direction to the city of Vernon. There he made a stop and purchased a jug of wine. Resuming his trip he again reached the main road, and then pursued one of three courses: Crossing this main road he went west, taking a direction which would add about twelve miles to the length of the return journey; or, after regaining the main road, he proceeded along it a distance of about .six miles to a point a little north of Gardena, and there turned west, and, passing through Redondo, reached the point where the accident occurred; or (and which seems most likely) he remained on the main road, or Harbor boulevard, until he came to a point about four miles from San Pedro, and there made his detour westerly, traveling in the direction of Harbor City, and so arrived .at the aforesaid point of accident.

It may be stated preliminarily that the evidence shows that Boatman’s companion, Park, had consumed part of the wine purchased at Vernon and was intoxicated at the time of the overturning of the automobile, but there is a conflict in the evidence as to whether or not Boatman had partaken of it, so that we will not review the finding of the commission that the upsetting of the machine cannot be attributed to any lack of skill on the part of its driver induced by a state of inebriety.