ROYAL INDEMNITY COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents, 192 Cal. 675

WILBUR, C. J. The Industrial Accident Commission made an award in the above-entitled case after having first decided the matter in favor of the employer and the insurance carrier, and after having granted a rehearing. The finding of the Commission in regard to the happening of the injury is as follows: “Said injury occurred in the following manner: Said George R. Ingalls was employed as a chauffeur and immediately prior to the injury was reporting to his employer on the condition and expenses of operation of the employer’s automobiles in an upper room of her residence.

During such report she heard suspicious noises in the lower part of the house and asked him to investigate. On second thought she asked him to wait and she would accompany him, which she did, taking with her a revolver, and upon reaching the living-room the Chinese cook stepped from behind a curtain in the dining-room and the employer said, ‘Lim, you frightened me so, I thought there was a burglar,’ whereupon said Chinese cook shot and killed said employee and thereafter immediately went to his own room and committed suicide.

From the foregoing circumstances it is the conclusion of this Commission that the employee was exposed to the risk of this particular injury by the request of his employer to protect her and her property from possible marauders and that said Chinese cook was at said time such a marauder, although his specific purpose in appearing armed at that time and place is unknown and that said injury, therefore, also arose out of said employment and was proximately caused thereby.” In addition to the foregoing statement of facts it may be added that the Chinese cook had been employed by Mrs.

Garvey for two years and that the deceased had also been employed for about ten months and that they were well acquainted and apparently friendly. There is no showing of any trouble between them except that there was evidence that about six weeks or two months previous to the killing the deceased had been skylarking with the cook, and in the course of the skylarking the cook had been somewhat bruised and had been shut in a closet. Apparently after that time the relations between the two had been friendly. There was also evidence that Mrs.

Garvey, the employer, first saw the cook as he came out from behind the curtains immediately before he shot the deceased. She noticed a very peculiar wild look on his face. Nevertheless, she was satisfied and turned away and “gave it no more thought.” Two shots were immediately fired by the Chinese cook in killing the deceased. The Chinaman then repaired to his room and killed himself with the same weapon. Under these circumstances it is clear that the Chinaman intended to kill the deceased, and that he had no intention of killing his employer or molesting her property.

Assuming that the direction by the employer to the chauffeur to accompany her downstairs to repel suspected burglars brought the transaction within the course of his employment, so that if he had been killed or wounded in preventing a burglary, the injury would have been compensable, because arising out of his employment, it is clear that the death of the deceased did not arise out of such employment, but that he was killed from motives of a private revenge or for some other reason pertaining to him individually and not arising out of the employment.

The employer would never have directed the deceased to accompany her for the purpose of overcoming the Chinese cook, and, immediately upon discovering his presence, she was satisfied that their errand had been unnecessary and fruitless. Neither the employer nor the deceased anticipated the tragedy which immediately followed. The award must be annulled.

In view of our conclusion, it is unnecessary to pass upon the question raised by the petitioner, Royal Indemnity Company, which claims that the award was unauthorized because of the fact that the notice of the application for rehearing after the first finding of the Commission was not served upon it, and that for that reason the Industrial Accident Commission had no jurisdiction to vacate the original decision and make the award. Award annulled. Kerrigan, J., Myers, J., and Waste, J., concurred.