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what the autopsy surgeon meant." The ob- 1 said physicians. There was nothing, other jection was overruled, and the witness an- than is here stated, to indicate that either of swered, "No."

the physicians had any authority to make Plaintiff's counsel do not attempt to justi- any admission binding upon the defendant. fy this ruling, but assert that it was harm. There was a provision in the policy giving less. We cannot agree. The question of a the defendant the right to examine the perdiseased condition of the heart was one of son of the assured at any time after injury. the vital issues in the case. Defendant pro- If this be regarded as indicating that the . duced much evidence tending to establish physicians had authority to make admissions such diseased condition. In the words of its in behalf of the defendant, nevertheless it counsel :

was not shown that they had made admis"Since respondent could not establish an un- sions. It was merely shown that they made diseased condition of the heart by the testimony no denials, without showing any condition or of the coroner's physician, she introduced his circumstance which called upon them to say written report, and was permitted to have an- anything. other doctor interpret that report as not show- [4] In considering the instructions given ing a diseased condition, although the terms and refused, it is necessary to keep in mind used admittedly had no definite meaning in the fact that the policy here sued upon did medical parlance."

not insure against accidental death. It inBut it is said that this error was "cured” sued only against death as the result of acciby the fact that the defendant afterward dental means. The distinction is well recogcalled Dr. Wagner as a witness, who testi- nized in this state. fied that he did find a diseased condition of "Where the death is the result of some act, the heart. We fail to see how this cured the but was not designed, and not anticipated by error. It still left in the case the incompe- the deceased, though it be in consequence of tent testimony on the side of the plaintiff, to some act voluntarily done by him, it is acciden

tal death; but where death is caused by some which it is to be added that Dr. Wagner, as

act of the deceased, not designed by him, or a witness, was apparently impeached in the not intentionally done by him, it is death by eyes of the jury by his own report as inter- accidental means." Olinsky V. Railway Mail preted by Dr. Pallette.

Ass'n, 182 Cal. 669, 189 Pac. 835, 14 A. L. R. The report as first admitted was limited to 784. the portion thereof which stated the physical and pathological findings. Dr. Wagner,

[6] The trial court instructed the jury in his direct examination by defendant, men

that: tioned that "there was a history of plowing “The term 'accident,' as used in the policy that I had to embody in the notes." He was here in question and in these instructions, dethen asked upon cross-examination if that notes an event that takes place without one's history formed a material part in his exam

foresight or expectation,

or is an unination and opinion. He replied, "I had to usual effect of a known cause, and therefore

not expected. * It is an event happentake it into consideration.” Plaintiff there ing unexpectedly or undesignedly." upon offered in evidence the entire report, containing the following recital: “There was This instruction, together with plaintiff's a history of a severe strain while plowing instruction No. V, which followed it, tells and striking a large root.” The court over the jury in effect that, if the death of the asruled defendant's objection that it was hear-sured was due to a rupture caused by a say, and admitted it in evidence. It was strain naturally incident to the exertion of hearsay "twice removed," and should have plowing, but was an unexpected result there been excluded. It was not admissible for the of, the plaintiff could recover. It should not purpose of impeaching the witness, because have been given, because it did not tend to contradict, or modify what

"It fails to give effect to the plain language he had testified to.

of the policy, in that it does not distinguish be[3] It was shown at the trial that after tween the result to the insured and the means the autopsy an examination of the body was by which that result was brought about. As we made by two physicians in behalf of the bave already pointed out, the insurance is not plaintiff and two others in behalf of the de against accidental injury or death, but is fendant by stipulation "under the terms of against death resulting from injuries effected by the policy.” As part of her case in chief, and accidental means.". Rock v. Travelers' Insurbefore any witness had testified for defendance Co., 172 Cal. 462, 467, 156 Pac. 1029,

1031 (L. R. A. 1916E, 1196). ant, plaintiff was permitted to show by her said two physicians that neither of defend- [6] The court refused the defendant's reant's physicians, at the time of the examina- quest to instruct the jury to the effect that tion, made any statement to the effect that if the assured received a strain or wrench there was a diseased condition of the heart. as a result of the sway or swinging of the This was over defendant's objection, and plow, and there was no more lurch or sway without showing that any conversation what- or swing to the plow than is usual and ordiever took place at said time between any of narily incident to the character of plowing (209 P.) that the assured was doing, it was not an ac- , also, Clarke v. New Amsterdam Casualty Co., cident for which recovery could be had un- 180 Cal. 78, 179 Pac. 195. der the terms of the policy. One of plain- Enough has been shown, we think, to make tiff's witnesses bad testified that the ground it apparent that this verdict was predicated where the assured was plowing had not been upon an erroneous conception of the law, and plowed for at least five years, and "was so to necessitate a reversal, even if we could ashard you could not keep the plow in the sume that the verdict was not influenced by ground"; that "the plow was jumping in and the admission of the incompetent testimony out of the ground.” Under such circumstanc- to which we have referred. es we think the defendant was clearly enti- Inasmuch as this case must be sent back tled to have this instruction, or the sub, for retrial it is proper that we consider the stance thereof, given to the jury. For like assignments of error relating to the amount reasons, defendant's requested instruction recoverable under the policy. In the schedNo. XIX, or the equivalent thereof, should ule of warranties attached to and a part of have been given,

the policy, the assured stated his occupation [7] Complaint is made of the court's re- as "Real estate and investments," with the fusal to give either of several instructions duties "usual thereto." He further stated requested by defendant to the effect that: therein:

"A theory cannot be said to be established in "I understand that risks are classified aca civil case, where the facts and circumstances | cording to oocupation, and that my occupation from which it is sought to establish such theory above described is classified preferred.” are consistent with it, and are also consistent with a contrary theory."

Section 20 of the policy provided: It is true that a verdict may not lawfully his occupation to one classified by this company

"If the insured is injured after having changed be predicated upon mere conjecture or spec- as more hazardous than that herein stated, or ulation, and that, when two opposite con- is injured while doing any act or thing pertainclusions appear equally probable from all of ing to any more hazardous occupation," the the evidence, neither of them can be said to amount recoverable should be reduced in inverse be proven; but, from the mere fact that both proportion to the premiums charged for the reconclusions or theories are consistent with spective risks. (Italics ours.)

folboth are equally probable. If the minds of the jury, under such circum- the assured had not changed his occupation, stances, the one fairly appears more prob- but its contention was that the manual labor able than the other, it is established by pre of “real estate and investments,” but is an

of plowing is not incident to the occupation ponderance of the evidence These instructions were properly refused,

act incident to the occupation of "farmer," [8] The trial court erroneously instructed “farm laborer," and "common laborer," each the jury to the effect that the burden rested of which was classified by it as "hazarupon the defendant to prove by a preponder- dous,” and required a premium 24 times ance of the evidence that disease was a prox- larger than was paid by the assured, and imate cause of the death of the assured that the amount recoverable under the pol(Kellner v. Travelers' Ins. Co., 180 Cal. 326, icy was thereby reduced from $7,500 to $3,181 Pac. 61, 63), and refused the specific in

000. structions to the contrary which were re

[10] Defendant contended at the trial that quested by the defendant. This error was the court should take judicial cognizance of not cured by the giving of a conflicting gen. the fact that plowing is not incident to the eral instruction to the effect that the burden occupation of real estate and investments, was upon the plaintiff to prove by a pre- but is incident to the other occupations above ponderance of the evidence that the death re named, and should have so informed the sulted "from bodily injuries effected solely jury. The learned trial judge might well through external, violent, and accidental have done so. Courts have taken judicial nomeans." Rathbun'v. White, 157 Cal. 248, 253, tice of the general character of business, of 107 Pac. 309, 311.

a crematory, of building and loan associa[9] The court further instructed the jury, tions, of the lumber industry, of a barber in effect, that the presence of disease as a shop and shoe-shining parlor, of a mercantile proximate contributing cause of the death agency, and of professions generally. of the assured would be immaterial, unless "The judicial notice which courts take of matthey also found that the disease itself would ters of fact embraces those facts which are have caused the death of the assured at ap within the common knowledge of all, or are of proximately the same time without the accl. in their support.” People v. Mayes, 113 Cal.

such general notoriety as to need no evidence dent having occurred. This was in plain dis 618, 625, 45 Pac. 860, 862; Edson v. Southern regard of the terms of the policy, and sub- Pacific R Co., 144 Cal. 182, 189, 77 Pac. 894. stantially identical with an instruction which was expressly disapproved by this court in It must be conceded to be a matter of comKellner v. Travelers' Ins. Co., supra. See, mon knowledge that the manual labor of plowing is not ordinarily incident to the oc- | Iowa, 178, 72 N. W. 448, 64 Am. St. Rep. 170, cupation of real estate and investments in held an identical policy provision to be inlarge cities, but is an act incident to at least operative as applied to the case of an asthe occupations of farmer and farm labor- sured who was injured by the accidental diser; and this is no less a fact because of the charge of his gun while hunting. The Texas circumstance that men in the real estate court, in a case presenting an exactly similar business have been known to plow.

situation, refused to follow the Holiday [11] The question of the legal effect of the Case, saying: italicized words above quoted from the policy

“The decision is in the very teeth of language has not been adjudicated by the courts of that is plain and simple, and had the effect of this state. Some reliance is placed by plain-destroying the contract made by the parties and tiff upon the line of decisions of which the of substituting therefor one made by the court." case of Berliner v. Travelers' Ins. Co., 121 Lane v. General Accident Ins. Co. (Tex. Civ. Cal. 458, 53 Pac. 918, 41 L. R. A. 467, 66 Am. App.) 113 S. W. 324. St. Rep. 49, is an example, holding that the assured must have actually changed his oc

The Washington court, in a similar case, cupation in order that such a proviso should disapproved and refused to follow the Holibecome operative. But the language herè re-day Case, saying: lied upon by the defendant was not in the "It seems to us that the holding in the Iowa policy which was before this court in the case practically reads out of the contract that Berliner Case. It is in fact asserted with ap- clause" (the one here under consideration). parent reason that the language here relied Green v. National Casualty Co., 87 Wash. 237,

151 Pac. 509. upon was embodied in defendant's policies in response to the suggestion found in the opinion in the Berliner Case of a means by which tinental Casualty Co., 131 La. 475, 59 South.

To the same effect are Montgomery v. Conthe insurer might have avoided the result which there followed. That suggestion was Co., 176 Mo. 654, 75 S. W. 621, and Ridge

907; Loesch v. Union Casualty & Surety in the following language:

ly v. Ætna Life Ins. Co., 160 App. Div. 719, "If the company intended to say to the assur-145 N. Y. Supp. 1075 (affirmed in 217 N. Y. ed that if he did any act which did not strictly 720, 112 N. E. 1073). We are of the opinion belong to his own occupation, but was embraced that the better reason, as well as the weight more properly in some other business, and if thereby any harm to him accidentally resulted, of authority, is in support of that rule which that in such event he could claim nothing under gives effect to the plain intent of the lanhis policy, it was easy for them to do so in plain guage used by the parties in their contract. language.

[12, 13] In view of what we have said “That,” says the defendant, "is precisely what above, it is unnecessary to review the numerwe have done, except that we have provided for ous errors claimed to have been committed a reduction of the amount, instead of a forfei- in the trial of this branch of the case. It ture of the policy."

should be pointed out, however, that the The United States Circuit Court of Ap- burden rests upon the defendant, in order peals, Sixth Circuit, having before it a policy to make good its claim in this behalf, to containing a provision identical with that allege and prove that the occupation of here under consideration, as applied to a sit- "farmer," or "farm laborer," or "common lauation substantially analogous, held that the borer,” as the case may be, was in fact more proviso would be inoperative unless the act in dangerous than that of “real estate and inwhich the assured was engaged at the time vestments," not merely that it was so classiof injury was "habitual," as distinguished fied. Such is the plain intendment of the from "casual," and that the case should have language used, construing it strictly, as we been submitted to the jury to determine must, against the insurer. This the defendwhich of these it was. Inasmuch as the ant did not do in the trial below, but the court said in its opinion, “It does not appear plaintiff waived this omission (so far as that that Reading [the assured] ever ran the ele- trial was concerned) by proceeding throughvator befcre,” we are left in some doubt as out the trial as if the issue had been properto just what question it deemed should have ly presented. been submitted to the jury. Gotfredson v. The judgment is reversed. German Commercial Accident Co., 218 Fed. 582, 134 C. C. A. 310, L. R. A. 1915D, 312. We concur: SHAW, C. J.; WASTE, J.; The Supreme Court of Iowa, in the case of LAWLOR, J.; LENNON, J.; RICHARDS, Holiday V. American Mut. Acc. Ass'n, 103 Justice pro tem.

(209 P.)

ing stand on the same footing as the finding of PRUITT V. INDUSTRIAL ACC. COMMIS. a judge or verdict of a jury, and are not to SION OF CALIFORNIA et al.

be set aside if there is any substantial evi(L. A. 7298.)

dence on which they can rest; but a review may (Supreme Court of California. Aug. 30, 1922.) no jurisdiction to make a finding, where there

be had on the theory that the commission had 1. Master and servant em414–Service of ap- was no evidence to support it. plication for compensation before hearing held waived.

In Bank. Where one made a party to a workmen's

Proceeding under the Workmen's Compen. compensation proceeding at the hearing had ac-sation Act by Luceille Conklin and another tual knowledge of filing of application, was pres- for compensation for the death of Paul R. ent at the hearing, and when made a party im- Conklin, opposed by W. L. Pruitt and others. mediately became an actor therein by personally Compensation was awarded, and Pruitt brings recalling and cross-examining witnesses and a writ of review. Affirmed in part, and ansubmitting the matter for decision, and in all nulled and set aside in part. subsequent proceedings was represented by counsel, his conduct amounted to a waiver of Clock, McWhinney & Clock, of Long Beach, the requirement of Workmen's Compensation for petitioner. Act, g 17a, for the service of a copy of the ap- A. E. Graupner, of San Francisco, for replication for compensation, with notice of the spondents. time and place of hearing. 2. Master and servant 417(1)-Person ag. WASTE, J. Petitioner, W. L. Pruitt, seeks

grieved by want of service in compensation in this proceeding, on a writ of review, proceeding must apply to commission for re- to have set aside and annulled an award lief.

of the Industrial Accident Commission, upA party to a workmen's compensation pro- on the ground that, as to him, the commisceeding, contending that no service was made sion acted in excess of its powers and was on him, or claiming to be aggrieved by want of without jurisdiction in the matter. Two notice of pendency of proceeding, should, under questions are presented for consideration. Workmen's Compensation Act, f 18b, apply The first concerns the procedure followed in to the Industrial Accident Commission for relief substantially in accordance with Code Civ. the hearing on the original application out of Proc. $ 473, relative to relief against judgments, which the award arose. The second relates etc., taken through mistake, inadvertence, etc. to the sufficiency of the evidence to support 3. Master and servant 414Rehearing in the finding of the commission, in so far as compensation proceedings may be limited to it imposes a liability upon petitioner, hearing of additional testimony.

It appears from the record returned by the Where one applying for rehearing in work- respondent that Luceille Conklin and Eunice men's compensation proceeding, though made a G. Conklin, a minor, by her guardian ad litem, party during the first hearing, was present at instituted a proceeding before the Industrial the hearing, heard all of the testimony, cross. Accident Commission against Graham Bros., examined all of the witnesses, testified himself,l a copartnership, and its insurance carrier, and was fully apprised of the claim for com the United States Fidelity & Guaranty Compensation, the commission had power, in view of the broad powers conferred by Workmen's pany, for compensation for the death of Paul Compensation Act, 8 64e, to limit the rehear- R. Conklin. Petitioner was not made a paring to the hearing of additional evidence in- ty defendant in such application. When the troduced by such party, without again hear- matter came on for hearing before the refing any evidence to establish the claim. eree of the commission, Pruitt was present 4. Master and servant.cm361 - One hiring as a witness. When considerable testimony truck and driver to another not liable for had been taken, it appeared to the referee compensation, if exercising no control over that, by reason of his interest in the proceedthe driver.

ing and his apparent relationship to the deWhere owner of truck hired driver, under ceased employee, Conklin, Pruitt should be agreement that he should receive 25 per cent. joined as a defendant in the proceeding, subof the earnings of the truck and nothing when ject to the right of said Pruitt to request idle, and hired the truck and driver to a third and have granted a further hearing, and an person, the theory of general and special em- order to that effect was made. The referee ployment did not apply, and an award of compensation against him was unauthorized, unless thereupon inquired of Pruitt if he wished to he exerted some degree of control over the have the hearing continued to a future date, driver in connection with his employment in in order that he might make any preparation the service of the third person.

for further hearing. Pruitt stated that he 5. Master and servant 417(7) - Commis. was willing to proceed forthwith. He fur

sion's findings in compensation proceeding ther stated that, having been present and binding on reviewing court, if supported by having heard all of the testimony and proevidence.

ceedings thus far had, he would like to quesFindings of the Industrial Accident Com-tion the witnesses. The witnesses were mission in a workmen's compensation proceed- thereupon recalled and were cross-examined

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by him. He also took the stand and testified., was made upon him, or claiming to be aga At the conclusion of the testimony, in answer grieved by want of notice of the pendency of to a question of the referee, Pruitt stated the proceeding, should apply to the commishe was willing to submit the matter, which sion for relief substantially in accordance was done.

with the provisions of section 473 of the Code The commission thereafter made its find- of Civil Procedure. Workmen's Compensaings and award, holding Pruitt liable for tion Act, $ 18b. compensation as a joint employer with Gra- [3] Petitioner next complains that no eviham Bros., and awarded the applicants com-dence, testimony, or stipulations of any kind pensation in the sum of $5,000. In due time were introduced by or on behalf of the apPruitt applied for a rehearing before the plicants for compensation upon the rehearcommission, and subsequently filed a supple-ing; that the attorneys for petitioner objectmental petition, in which he set forth an out- ed to such procedure, but the referee proline of certain evidence which he desired to ceded to hear only the evidence introduced present in his own behalf. Upon this pe- by the defendant Pruitt; that there was not tition the commission granted a rehearing. at that time any evidence introduced estabWhen the matter came on again, Pruitt was lishing the applicants' claim against Pruitt, present in person and was represented by an the contention being that Pruitt never at any attorney. The record does not disclose that time has had an opportunity to object to the any objection was made by any of the parties stipulations which were previously offered in to the proceeding. Although the petitioner evidence, to cross-examine the witnesses on now contends that he demanded that he be behalf of the applicants, nor to object to the furnished with a copy of the testimony taken testimony introduced against him, and that at the previous hearing, the record does not the final proceedings did not actually amount bear him out in that behalf. Pruitt appears to a rehearing; that all that was done was to have been permitted to present any and to open the case as it stood in the first inall the testimony he desired in support of his stance and allow Pruitt to offer additional defense. A number of witnesses were called matters that he had by way of defense. and examined by him. The matter was There is no merit in this contention. Pruitt, thereupon submitted without objection or having been present at the first hearing, at protest from him. The commission made its which he was made a party defendant, havdecision after such rehearing, finding that ing heard all of the testimony, having in the testimony produced thereon was not suf-person cross-examined all the witnesses who ficient to change or modify the facts set were called at that time, and having himforth in the findings made upon the first self testified, was fully apprised of the claim hearing. It accordingly affirmed the findings of the applicants for compensation. Upon and award theretofore made.

the rehearing he proceeded without objec[1, 2] In seeking to have such award an- tion, was accorded every opportunity to offer nulled, the petitioner contends that the In- such testimony as he desired, and to seek dustrial Accident Commission was without such stipulations as he or his counsel might jurisdiction to make any award against him, feel would be material in presenting his defor the reason, first, that no copy of the fense. In seeking such rehearing he had set original application for compensation, with forth an outline of the new evidence he dethe notice, of the time and place of the hear- sired to present in his behalf. ing thereof, was served upon him at the time Under subdivision (e) of section 64 of the he was joined as a defendant before the com- Workmen's Compensation Act the commismission, or at any time. There is nothing in sion has very broad powers in the matter of this contention. Pétitioner had actual knowl-rehearings. If it considers that the issues edge of the filing of the application, and was raised by an application for a rehearing have present at the original hearing. When made theretofore been adequately considered, it a party to the proceeding, he immediately be may determine the matter by confirming, came an actor therein by personally recalling without a rehearing, its previous findings. and cross-examining the witnesses who had If a rehearing is deemed necessary to detestified in his presence and hearing, and termine the issues raised, or any one or submitting the matter for decision. In all more of such issues, it may order a rehearsubsequent proceedings he was represented ing thereon and consider the matters raised by counsel. His conduct in the matter by such application. If at the time of grant. amounted to a waiver of the requirements of ing such rehearing it shall appear that no the act (St. 1917, p. 846, § 17a) as to service sufficient reason exists for taking further tesand notice. It was substantially the same as timony, the commission may reconsider and that of one who appears in court proceedings redetermine the original cause, without even under similar circumstances, and must be setting a time and place for such further held to have had like effect. Massachusetts, hearing. The case of Carstens v. Pillsbury, etc., Co. v. Industrial Acc. Comm., 176 Cal. 172 Cal. 572, 158 Pac. 218, so urgently relied 491, 492, 168 Pac. 1050. Furthermore, a par- upon by the petitioner in support of his conty subsequently contending that no service tention, is not in point. All the evidence in

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