Pillsbury

Certiorari to review the action of the Industrial Accident Commission in awarding benefits to Harry Flint, an employee of petitioner, Coronado Beach Company. The other petitioner, Frankfort General Insurance Company, is interested, because it has issued a policy of insurance to Coronado Beach Company covering industrial accidents to the servants of that corporation.

The facts are briefly set forth in the following quotation from the opinion of the Industrial Accident Commission:

Petitioner contends that the Industrial Accident Commission was without power to make an award, for the reason that the accident did not arise out of the employment. Section 12 (a) of the compensation act (Stats. 1913, p. 283) contains the following language:

It will be noticed from a reading of the statute quoted above that the liability for compensation accrues only for accidents arising out of and in the course of the employment of the. person injured. That Flint was in the course of his employment at the time there can be no doubt, but it is equally clear that the accident did not arise out of his employment. That the act of his fellow-servant was but momentary and without malice and not in excess…