Industrial Indemnity Exchange v. Industrial Accident Commission

NOURSE, P. J. Petitioner, Industrial Indemnity Exchange, seeks review and annulment of a death benefit award to the widow and minor children of Arnold Mullen, deceased. The petition presents the single ground whether the facts support respondent commission’s finding that the injury “arose out of” and “occurred in the course of” the employment.

The undisputed evidence is: The Roberts Dairy owned and operated two ranches in Marin County—the K Ranch where dairy operations were conducted, and the Murphy Ranch where Mullen had been employed as a tractor driver for three months prior to March 8, 1947. Yancour, foreman of the K Ranch, learning that Mullen, who was an experienced dairy hand, was not working because of the rain, drove over to the Murphy Ranch Saturday afternoon, March 8, and offered Mullen a job as a milker. It was agreed that Mullen was to start on Sunday evening, March 9 at 7 p. m. at the [203]K Ranch. Yaneour drove Mullen hack to the K Ranch and told him he could sleep in the K Ranch bunk house. The next morning Mullen asked Yaneour if he could borrow one of the trucks, referred to as the weapons carrier, to go to the Murphy Ranch for his working clothes. Yaneour told him that no one was allowed to use the weapons carrier but himself, but that he was returning to the ranch at noon and would then take Mullen to the Murphy Ranch to procure his clothing. Yaneour on returning to the K Ranch about noon found the weapons carrier overturned on the road about one mile from the ranch. Mullen who had been driving it was pinned underneath and died as a result of his inquires. Yaneour learned from Ashbury, who accompanied deceased, that Mullen had taken the weapons carrier after Yaneour’s departure, had driven to the Murphy Ranch for his clothes and had then gone out of his way into the town of Inverness. Lundgren, part owner of the Roberts Dairy, testified that orders had been given that the weapons carrier was not to leave the ranch, and that the only person allowed to drive it was the foreman, Yaneour. The reason for this order was that the vehicle was new, and the owners had had unfortunate experiences with other vehicles being taken off the ranch and damaged. The payroll records showed that Mullen was paid in full for his work at the Murphy Ranch. No account had been opened for him at the K Ranch at the time of his death.

Our decision is controlled by the principle stated in Auto Lite Battery Corp. v. Industrial Acc. Com., 77 Cal.App.2d 629, 631 [176 P.2d 62] : “It is well settled in this state that an employer may'so limit the scope of an employee’s duties that if he steps outside the scope of those duties and undertakes to perform work which he is not employed to do he is not acting within the scope of his employment. (San Francisco & S. Co. v. Industrial Acc. Com., 201 Cal. 597 [258 P. 86]; Robert Sherer & Co. v. Industrial Acc. Com., 175 Cal. 615 [166 P. 318] ; Williamson v. Industrial Acc. Com., 177 Cal. 715 [171 P. 797]; Ruff v. Industrial Acc. Com., 123 Cal.App. 168 [11 P.2d l7].)”