Hartford Accident & Indemnity Co. v. Industrial Accedent Commission

DESMOND, J., pro tem. The validity of an award of the Industrial Accident Commission is before us on certiorari.

On May 20, 1935, one' Joe Reed' died within an hour after he had been trampled and gored by “Prince”, one of a herd of seven elephants, which he and a man, named Schubert, were exercising in a ring at winter quarters of Al G. Barnes Circus, located at Baldwin Park. The deceased left no known dependents, and the only claims presented or allowed on account of his injury and death were for surgical and hospital expenses $30; for burial expenses $150. The referee, who heard the ease, found that deceased was in the joint employment of two organizations, Metro-Goldwyn-Mayer Studios and Al G. Barnes Circus, and that both were jointly liable for the sums mentioned; accordingly, he ordered their insurance carriers to pay the claims. Petitioner in this case is insurance carrier for Al G. Barnes Circus.

The findings and award are attacked on two grounds: Insufficiency of evidence to establish the joint employment; and failure to find specifically that the injury sustained by deceased “occurred in the course of,'and arose out of, the employment.” Considering the second objection first, we refer to that portion of the finding reading as follows: “Joe Reed was injured when attacked by an elephant on May 20, 1935, the injury proximately causing his death on the same date. On this date he was on the payroll of Metro-Goldwyn-Mayer Studios and was employed by said studio for the purpose of assisting in the care and training of an elephant named ‘Queen’. At the time of his injury he was engaged in exercising the elephant ‘Queen’ and six other elephants, all elephants being the property of Al G. Barnes Circus. The care and attention being given the elephants other than the ele[741]phant ‘Queen’ was for the use and benefit of the Al G. Barnes Circus, and was rendered with the approval of the said A1 G. Barnes Circus. The said Joe Reed was, at the time of his injury, in the joint employ of Metro-Goldwyn-Mayer Studios and Al. G. Barnes Circus at Baldwin Park, California. ’ ’

We believe there is a definite implication, if not a direct finding, in this statement that the fatal injury was suffered by deceased while employed and arising from that employment, material facts in issue (sec. 20, Workmen’s Compensation Act of 1917), consequently we are of the opinion that the findings are not, as claimed, fatally defective in this respect. (Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699, 709 [28 Pac. (2d) 919]; Armstrong v. Industrial Acc. Com., 219 Cal. 673, 676 [28 Pac. (2d) 672].)