Gagnebin v. Industrial Accident Commission

BARNARD, P. J. This is a proceeding to review a decision of the respondent commission denying compensation on account of the death of one Elden J. Gagnebin, who was the husband of one of the petitioners and the father of the other.

The respondent Gill operated several ranches in Madera and Fresno Counties and also a feed yard at Calwa, near Fresno. For some two years prior to the time here in question Elden J. Gagnebin was employed as a farm laborer by Gill and resided upon one of these ranches, which was located about sixteen miles east of the city of Madera. Upon this ranch, which consisted of about 5,600 acres, there were 550 head of cattle for which water had to be pumped by means- of a gasoline engine. One A. C. Thompson was manager and foreman for all of the Gill properties in these two counties, and resided on another ranch some distance west of Madera. Under instructions from Thompson, Gagnebin went to the feed yard at Calwa on the morning of October 16, 1933, and spent the day there assisting in loading fertilizer. Leaving there at 6 P. M. he went to Madera, [82]and while proceeding from there to a pumping plant on the ranch where he lived, he received injuries in an automobile accident which resulted in his death.

After a hearing the respondent commission found that Gagnebin was in the employ of the respondent Gill at the time in question, that the third respondent was Gill’s insurance carrier, that both employer and employee were subject to the provisions of the Workmen’s Compensation, Insurance and Safety Act, and that the said employee had suffered injuries in a traffic accident on the highway about one and one-half miles from Madera. It was further found, however, that said injury did not arise out of or in the course of his employment and that the errand upon which the employee was engaged at the time of the accident was personal and not incidental to any service required by his employment. A rehearing was asked for on three grounds, namely: 1. That fraud on the part of the insurance carrier resulted in the petitioners being unrepresented by counsel at the hearing, in that an adjuster for the insurance company called upon the petitioner Lois Gagnebin and advised her, in effect, that she did not need a lawyer, that no one was fighting the case, that there would be no controversy, and that she would receive compensation. 2. That the evidence does not justify the findings of fact. 3. The discovery of new evidence. Attached to the petition for rehearing is an affidavit by A. C. Thompson, manager for respondent Gill, containing a number of material facts which were not brought out at the hearing. The respondent insurance company answered the petition for rehearing, and included an affidavit, the effect of which was to deny that any fraud was used in the respect claimed. A rehearing was denied and this proceeding followed.