Douglas Aircraft Co. v. Industrial Acc. Commission

• Decision Date: 08 February 1957
• Citation: 306 P.2d 425,47 Cal.2d 903
• Court: California Supreme Court
• Parties: DOUGLAS AIRCRAFT COMPANY, Inc. (a Corporation), and Industrial Indemnity Company (a Corporation), Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, John A. MacDowell et al., Respondents. L. A. 24416.

Page 425

306 P.2d 425

47 Cal.2d 903

DOUGLAS AIRCRAFT COMPANY, Inc. (a Corporation), and Industrial Indemnity Company (a Corporation), Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, John A. MacDowell et al., Respondents.

L. A. 24416.

Supreme Court of California, In Bank.

Feb. 8, 1957.

Rehearing Denied March 5, 1957.

Kearney, Scott & Clopton and Mort L. Clopton, Los Angeles, for petitioners.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, and Daniel C. Murphy, San Francisco, for respondents.

McCOMB, Justice.

This is a petition to review an award of compensation made by respondent commission in favor of respondent MacDowell (hereinafter referred to as the 'employee') against petitioner Industrial Indemnity Company as the insurance carrier of petitioner Douglas Aircraft Company, Inc.

Facts: The employee was working for Douglas Aircraft Company, Inc., as a tool control dispatcher. He was employed on the night shift, and it was customary for him on two or three occasions each night to take a three-wheeled motor scooter to deliver blueprints to the blueprint room, pick up other blueprints, and return them to the toolroom.

About 10:40 p. m. on December 11, 1954, he took the motor scooter, went to the blueprint room, picked up blueprints and while returning to the tool booth where he worked he 'struck a bump' in the road which threw him off the motor scooter. As a result of this fall he was injured.

The commission found:

First: The employee was inebriated at at the time of the accident;

Second: The employee sustained injuries within the course of his employment; and

Third: The evidence failed to establish that the employee's injuries were caused by his intoxication.

This is the question presented for our determination: was there substantial evidence to sustain the second and third findings of the commission?

Yes. This conclusion is governed by these rules:

(1) When a finding of fact of the Industrial Accident Commission is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.

The findings of the commission are not subject to review on this ground except insofar as they may have been made without any evidence whatever in their support. (Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 705(5), 28 P.2d 919; Cadotte v. Industrial Acc. Comm., 86 Cal.App.2d 754, 757, 194 P.2d 563; cf. Primm v. Primm, 46 Cal.2d 690, 693(1), 299 P.2d 231.)

(2) Where the employer or person in authority over a particular employee acquiesces in actions of the employee with knowledge of their character, a finding that the employee was within the scope and course of his employment at the time of an injury is sustained on the basis that the employer has impliedly authorized the employee's action. (Jimeson v. Industrial Acc. Comm., 23 Cal.App.2d 634, 638, 73 P.2d 1238; Department of Public Works of California, Division of Highways v. Industrial Acc. Comm., 128 Cal.App. 128, 131, 16 P.2d 777; Joshua Hendy Iron Works v. Industrial Acc. Comm., 74 Cal.App.2d 191, 195(5), 168 P.2d 203; Pacific Employers Ins. Co. v. Chavez, 5 Cal.2d 247, 252, 54 P.2d 701.)

(3) The burden of proving that an injury to an employee arising out of and occurring in the course of his employment was caused by his intoxication rests with the employer asserting such as a matter of defense. (Lab.Code, § 5705(b). ¹)

Applying these rules to the instant case, the record discloses ample evidence to sustain each of the questioned findings. For example:

Second Finding

Petitioners contend that the employee was injured while engaged in an act not within his assigned duties. It is true that there was evidence to this effect. However, there was uncontradicted evidence that the employee had been on the same job about six months, had regularly gone out on the scooter three or four times each night returning blueprints to the blueprint room and and picking up others which he took back to the toolroom. The fact that the employee had performed these services was known to the 'lead man,' who had passively condoned and approved the practice. Therefore, under rule (2), supra, the record sustains this finding.

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