Alexander v. Workmen's Compensation Appeals Bd.

• Decision Date: 05 June 1968
• Citation: 262 Cal.App.2d 756,69 Cal.Rptr. 190
• Court: California Court of Appeals Court of Appeals
• Parties: Jimmy Wayne ALEXANDER, Deceased, by Mary F. Alexander, his widow, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Robert L. Harper and Fireman's Fund Insurance Company, Respondents. Civ. 894.

Page 190

69 Cal.Rptr. 190

262 Cal.App.2d 756

Jimmy Wayne ALEXANDER, Deceased, by Mary F. Alexander, his widow, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Robert L. Harper and Fireman's Fund Insurance Company, Respondents.

Civ. 894.

Court of Appeal, Fifth District, California.

June 5, 1968.

[262 Cal.App.2d 757] Jensen & Underwood, by Philip Pendergrass, Modesto, for petitioner.

Everett A. Corten and Richard Swanson, San Francisco, for respondent WCAB.

Hanna & Brophy, by F. A. Aycock, Fresno, for respondents, Robert L. Harper and Fireman's Fund Ins. Co.

OPINION

STONE, Associate Justice.

This case is before us on a petition for writ of review of the 'Opinion and Order Denying Reconsideration' of the Workmen's Compensation Appeals Board (hereinafter called W.C.A.B.) Just two witnesses testified at the hearing before the referee, petitioner, the widow of Jimmy Wayne Alexander, and her brother, Robert L. Harper, the decedent's employer and one of the respondents herein.

Jimmy Wayne Alexander was killed in an automobile accident occurring in the early morning hours of September 10, 1966, on Moffat Road near the City of Manteca. He had been employed by Harper's firm, Modesto Drywall Company, from 1965, when the company began operations, until his death in September 1966, except for a leave of absence during July and August 1966 when he worked for D. C. Vient in Las Vegas, Nevada. He was employed as foreman, entrusted with broad managerial duties, including bidding on jobs, and was furnished a gasoline credit card for use in the business and a company pickup truck which he was driving at the time of his injury and death.

For several months prior to the accident Modesto Drywall was in financial trouble, apparently because of difficulties in obtaining jobs; it finally went out of business in February 1967. Alexander told Harper he knew of a possibility of obtaining work on a large housing project in Seattle, Washington. They discussed the matter during the week preceding the accident and, after a talk on the evening of September 9, Alexander decided to go to Seattle to secure details on the job, hoping that Modesto Drywall could bid on the job and secure the work.

Mrs. Alexander testified that he husband came home on the evening of the 9th and told her he was going to Seattle to bid on the job, that he was to drive to San Francisco and there catch a plane which was to leave at 2:25 a.m. He had no plane reservation as he had been told when he called San Francisco that none was necessary on the particular flight. Alexander left Modesto around 11:30 on the night of September 9, and was killed in an automobile accident shortly after midnight.

Respondents produced no evidence; they rely upon the cross-examination of Mrs. Alexander and her brother, Mr. Harper. The hearing referee found:

'Employee died on September 10, 1966. Death was not caused by injury arising out of and occurring in the course of his employment.'

Mrs. Alexander, the applicant, filed a petition with the W.C.A.B. requesting a reconsideration. Thereafter the W.C.A.B. filed its opinion and order denying reconsideration; that order is before this court on a writ of review.

Petitioner contends tht since the only witnesses, the applicant and the employer, both testified that Alexander was on an errand for his employer at the time the accident occurred, and there was no testimony to the contrary, the W.C.A.B. must find accordingly. This argument overlooks the right of the trier of fact to draw inferences from circumstantial evidence. Only in a case where there is no evidence from which the finder of fact can draw a contrary inference must the positive testimony of the witness be accepted as true. (Blank v. Coffin, 20 Cal.2d 457, 460--462, 126 P.2d 868.) Unlike Jones v. Workmen's Comp. Appeals Board, 68 A.C. 490, 67 Cal.Rptr. 544, 439 P.2d 648, where the W.C.A.B. failed to consider the conflicting probative evidence, the decision, here, rests upon inferences drawn from the testimony of the two witnesses themselves. In its order and opinion, the W.C.A.B. cites the testimony of the employer, Mr. Harper, in support of an inference contrary to the testimony of both the decedent's widow and his employer. The opinion recites:

'Defendant testified that his company went out of business in February 1967; that the company had no license to do business in the State of Washington and that no effort was made to make contracts in any other state. Defendant further testified that he did not know what the decedent's intentions were in regard to getting a job for himself in Washington.'

Upon analysis, the import of petitioner's argument is that the W.C.A.B. exceeded its authority in giving greater weight to circumstantial evidence than to direct...