Argonaut Insurance v. Industrial Accident Commission

McCOMB, J. Argonaut Insurance Company (hereinafter referred to as “petitioner”) seeks annulment of an award for workmen’s compensation benefits made by respondent Industrial Accident Commission (hereinafter referred to as “the [741]commission”) to respondent Bryant Smith (hereinafter referred to as “applicant”) for injuries suffered by him on August 27, 1958.

In making the award, the commission found that the injury by reason of which the award was being made arose out of, and occurred in the course of, applicant’s employment by Spirite & Conn, Inc., petitioner’s assured.

This is the sole question necessary for us to determine: Was there substantial evidence to sustain the commission’s finding that applicant sustained an injury to his back during the course of his employment by Spirite & Oonn?

This question must be answered in the negative. The uncontradicted evidence discloses that at the time of his injury applicant was employed by the United States Government and not by petitioner’s assured.

The record reveals the following:

On August 27, 1958, applicant was employed as a heavy equipment operator-foreman by Spirite & Conn on a project near Barton Flats, California.

On that date Everett Byrd, a fire suppression ranger of the United States Forest Service,* told William L. Robinette, project manager for Spirite & Conn, that there was a fire on United States National Forest land about two miles from Barton Flats and that he wanted two water trucks and two D-8 tractors with bulldozer blades to go to the fire as soon as possible.

About 4 p. m. Mr. Robinette told applicant to see that the equipment was taken to the fire area and to get a couple of men to help put the fires out “on orders from the officers of [742]the forestry service of the Federal Government.” Thereafter applicant worked until 5 or 5:30 p. m. for Spirite & Conn. He then went to the fire area. He found that with each of the bulldozers or caterpillars there was a Forest Service man, who told the operator where to go.