Warner v. Industrial Accident Commission

BARNARD, P. J. This is a proceeding to annul an award of the respondent commission denying compensation on account of the death of Stephen Warner, the husband and [376]father, respectively, of the petitioners. Stephen Warner was a deputy sheriff in the employ of the respondent county. On January 8, 1935, he served as a bailiff in one of the superior courts in that county until 5 o ’clock in the afternoon. Thereafter he was detailed for duty as an inspector at the international border line between the United States and Mexico. He worked there from 6 o’clock P. M. on that day until 2 A. M. the following morning and continued to work there during those hours of each day until January 13, 1935, his duty being to inspect automobiles crossing the border line. On January 13, 1935, a respiratory infection became manifest and he was compelled to quit work early in the evening and return to his home. He was taken to the United States Naval Hospital at San Diego the same night and died from pneumonia on January 20, 1935.

The commission found that the death of Warner was not caused by an injury arising out of or in the course of his employment. It is well established that to permit a recovery in cases of this nature the employee must have been subjected by his employment to a special exposure which was beyond that to which the commonalty is subjected. The essential question here is whether the implied finding that the employment in question subjected the deceased to no special exposure is sustained by the evidence.

It appears from the transcript that the only shelter provided for such inspectors was a platform adjoining a building, with an overhanging roof. In performing his duties the deceased had to leave this platform and go into the street and inspect each car as it crossed the border. Mrs. Warner testified that her husband was in good health up to the time he began this work, and that about two days after he began the work he complained that he got his feet wet there, that it had been wet all of the time, that there was no shelter, and they had to be out of doors all of the time. She also testified that he caught a cold but continued to work every night, and that on the 13th he came home about 9 o ’clock in the' evening complaining of a pain in his chest and saying that he was very cold and damp as it had rained there for several days. Earlier in the week her husband had told her that he was exposed all of the time and that he had to stay out in the wind and the cold and the mud. Another inspector testified that he saw the deceased during the week in question; that