Paulsen v. Industrial Accident Commission

PULLEN, P. J. Petitioner seeks by this writ to review the findings and award of the commission wherein the applicant was denied the relief sought.

The facts are brief and undisputed. Petitioner Iver Paul-sen was employed in the capacity of general ranch laborer by H. Bigelow, who was the owner of a large band of sheep which had been pastured during the winter and early spring on lands near Friant in the county of Fresno. On April 20, 1934, the order was given to move the sheep from their winter pasturage to the summer range in the Sierra Nevada Mountains. Paulsen and another were assigned to the task of driving the sheep to the range. It was the usual custom to move the sheep along the highway until noontime, when one of the men prepared the meal while the other man held the sheep together and kept them out of the road. The first midday stopping place was the usual place where sheepmen and cattlemen had long been accustomed to stop. A truck from the Bigelow ranch had preceded the sheep and left the necessary cooking equipment, food and water for the preparation of this meal at this point. When the sheep and herders reached this point petitioner excavated a shallow trench approximately 100 feet from the roadway and therein built a fire of twigs and branches gathered from the nearby trees and brush. As he was seated on a stone near the fire stirring the contents of a kettle, an explosion occurred which caused some foreign matter to strike petitioner in the eye resulting in the loss o'f sight in the eye and its subsequent removal. The surgeon who attended petitioner found a portion of a copper shell of a dynamite cap in the eye.

A road construction crew a short time before had been engaged in working along this highway and supposedly a cap was dropped at the place where petitioner built his fire, which, coming in contact with the heat of the fire, exploded, causing the injury of which complaint is made.

Two questions are submitted by respondent: First, whether the injury to petitioner was proximately caused by an injury arising out of and in the course of his employment, and secondly, whether petitioner had laid a proper foundation for his petition for review.

The conclusion of the commission in this matter was based upon the rule expressed in Storm v. Industrial Acc. Com., 191 Cal. 4 [214 Pac. 874], In that case, Storm, an [572]apprentice painter was employed to sandpaper the wall of an unoccupied dwelling which the employer was renovating under contract. Just prior to the accident the employee lit a cigar to smoke while he worked, and a spark from the match as he tossed it away came in contact with a dynamite cap which in some unknown manner had been placed on a window sill in the room, which caused an explosion, resulting in the loss of his sight. How the dynamite cap came to be there was unknown. It was established it was not placed there by the employer or by any of his men, nor were dynamite caps used in connection with the work. The commission awarded compensation to Storm but the award was annulled on the ground the injury was not proximately caused by the employment because the risk was not one necessarily incident thereto. Petitioner insists that the court in the Storm case by its declaration that an injury for which compensation may be awarded must “arise out of and in the course of the employment,” not only overlooked the provisions of the act that it be liberally construed but limited the scope of the act beyond the intent of t,he legislature, as section 21 of article XX of the Constitution, which authorized the establishment of a system of workmen’s compensation, does not require that compensable injuries must arise out of employment but for relief from consequences of injuries “in the course of employment”, an expression found also in the title of the act. Regardless, however, of the merits of this argument we believe the present case and the Storm case can be differentiated upon the facts.