Phoenix Indemnity Co. v. Industrial Accident Commission

I dissent. I find the evidence, viewed fairly, impartially and realistically, inadequate to prove that the accident which occasioned the employe’s death occurred while the employe was “performing service growing out of and incidental to his employment” or while he was “acting within the course of his employment.” (See Lab. Code, § 3600.) Accordingly I would annul the award.

The Industrial Accident Commission awarded a death benefit to the widow of Marion Robert Hamilton, who was killed when the airplane he was flying crashed into a power line. By writ of review, Phoenix Indemnity Company, the insurance carrier of his employer, challenges the commission’s jurisdiction to make the award.

The findings of the commission are attacked by the insurer upon the sole ground that there is no evidence whatever tending to prove death arising out of employment, as required by section 3600 of the Labor Code. Although the accident may have occurred during the course of Hamilton’s employment, the argument runs, it did not arise out of such employment. More specifically, the act of Hamilton in taking his daughter for a ride was personal in nature, the employer loaned the plane to him for personal use, and the venture was not reasonably incidental to his employment.

The evidence showing the scope of Hamilton’s employment and the use of the plane at the time of the accident is quite brief. He was employed by Herbert Weggers, doing business as Weggers Airplane Seeding and Dusting Company. In addition to providing crop dusting and seeding service, Weggers *858 offered…