I dissent. The Industrial Accident Commission found that the Wm. Fox Vaudeville Company was the special employer of Loya at the time of his fatal injury and rendered an award solely against the petitioner, which is the insurance carrier of that company. In my opinion the findings of the Commission and the award were amply supported by the evidence. The section crew of which the deceased was a member was sent out from Saugus to "location," with instructions to follow the directions of the Fox company in handling the motor-car from which the deceased was thrown to his death. When the day's work was completed the crew, including the deceased, was sent back to Saugus to the home base on this same motor-car. It was on the return trip to Saugus that the accident occurred. It was the duty of the deceased to assist the Fox company and return the motor-car to the general employer at Saugus. Until the motor was so returned the deceased was rendering service incidental to the work of the Fox company in carrying on its work and until such return the deceased was using the instrumentality provided by the Fox company in going to and from "location." In this respect the case comes within the rule approved by this court in Makins v. Industrial Acc. Com.,198 Cal. 698 [49 A.L.R. 411, 247 P. 202, 203], wherein it was said on page 701: "The rule is well settled that an employee, in going to work, comes under the protection of the act when he enters the employer's premises or upon the means provided for access thereto, though the premises and such means of access are not wholly under the employer's control or management." The main opinion holds that under the evidence the motor-car and its crew had been dismissed and returned wholly to the sphere of the general employer. It applies in effect the "going and coming" rule to the *Page 60 situation, but loses sight of the well-established exception to the general rule approved in the Makins case with supporting authorities. There are two sufficient reasons why the holding of the main opinion on this branch of the case is untenable. First, the evidence was conflicting as to whether the control of the crew on the part of the Fox company ceased before the crew reached Saugus. There was documentary evidence that the Fox company actually paid for the service of the crew of which the deceased was a member, until the crew arrived in Saugus. When the main opinion places over against the documentary evidence the oral statements of the witnesses for the Fox company that the bill for such services was paid without exact knowledge of its import, this court is placing itself in the position of weighing the evidence, a function left entirely to the Commission under the law. And, secondly, the "going and coming" rule was not invoked by the Fox company before the Commission, either by pleading or otherwise, on the original hearing or on rehearing. Under sections 8 (a) and 6 (c) of the act, this defense was waived.
There is a sufficient reason why the award might properly be affirmed as an award solely against the petitioner. The insurance policy executed by the petitioner contained a provision whereby the petitioner agreed with the Fox company to pay to any person entitled thereto under the Workmen's Compensation Law the entire amount due or to become due to such person because of any application for compensation accepted by the Fox company. In its contract with the general employer in this case, the Fox company agreed in writing to hold the general employer harmless from any liability for injury or damage from any cause which might accrue to the employees of the general employer during the progress of the work of the Fox company. The Commission undoubtedly relieved the general employer from its liability as such by reason of this contract. And I think the Commission was justified in so holding. The main opinion refuses to pass upon the effect of this contract, deeming it unnecessary to do so. I fail to see why this contract should not be given force and effect. The contention of the petitioner that the contract was not executed with the requisite authority should not be sustained. The contract was signed in the name of the *Page 61 company under its corporate seal by an agent of the company having to do with the ordering of equipment and men, and by the same man claimed by the petitioner to have dismissed the crew at "location." Furthermore, it was stipulated that this same man had authority from the Fox company to engage the equipment which would include the small car from which the deceased fell. The petitioner is in no position to complain of the effect of such contract, for it expressly agreed to indemnify against liability assumed, as here, by the Fox company. (Brooks v. A.A. Davis Co., 124 Okla. 140 [254 P. 66].)
Rehearing denied.
Shenk, J., and Langdon, J., dissented.