DRILLON v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Fourth District, California.

DRILLON v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 2559

Decided: July 18, 1940

Whelan & Whelan, of San Diego, for petitioner. Everett A. Corten, of San Francisco, for respondents.

This is an original proceeding in which petitioner seeks to have annulled an award made against him by the Industrial Accident Commission in favor of Claude Hooper. The sole question for decision is whether Hooper was an independent contractor or an employee of Drillon.

Hooper was injured on August 22, 1939, while riding a horse owned by E. Drillon, in a race on the track at Del Mar, California.

Hooper was regularly employed by Senator Jack Metzgar on a monthly salary to exercise his horses and to ride some of them in races. The contract permitted Hooper to ride other horses than those owned by Metzgar when services to others did not interfere with the duties of his regular employment.

During the season of 1939, E. Drillon was racing horses on the Del Mar track. Claude Hooper was a jockey, licensed by the California Horse Racing Board under an act of the legislature, Stats.1933, p. 2046, which was ratified at an election held on June 27, 1933. This act has been amended. See Stats.1935, p. 1586, p. 1943; Stats.1937, p. 67, p. 2292; Stats.1939, p. 2006.

The rules of the California Horse Racing Board were adopted and promulgated under authority of the above statutes. Among other things they govern contracts between owners and jockeys and the relations between them. We may take judicial notice of these rules. Sec. 1875, Code Civ.Proc.; Sheehan v. Vedder, 108 Cal.App. 419, 292 P. 175; Wood v. Kennedy, 117 Cal.App. 53, 3 P.2d 366; Young v. Boy Scouts, 9 Cal.App.2d 760, 51 P.2d 191.

Drillon engaged Hooper to ride the horse Pomposa in a race held on August 22, 1939. Pomposa stumbled, Hooper was thrown and injured. He had not ridden for Drillon before and in this race was acting in the capacity of a “free lance” jockey.

Hooper testified that Drillon gave him instructions on how to ride Pomposa in the race. In his testimony we find:

“Mr. Drillon gave me orders and told me how to ride the horse.

“Q. All right.

“Mr. Meyers: Were you acquainted with the horse previous to this race? A. No, I never rode the horse before or had known him.

“Q. Did you know anything about the horse's habits or characteristics or how he should be ridden to the best advantage? A. No.

“Q. Had you ever been on the horse before? A. No, never. *

“Q. All right. What did Mr. Drillon tell you when you came down to the paddock? A. Well, he told me, his exact words, I can't remember, because that is too far back.

“Q. I thought I understood you to say to the Commissioner that when you were there in the paddock, ready to mount the horse, that Mr. Drillon told you to let the horse run his own race to the last quarter of a mile and then do the best you could? A. Yes, and then to hit him three or four times, and if he didn't run for the whip, then to hit him no more.

“Q. Is that all you remember Mr. Drillon telling you, now? A. Yes, that is all.”

Hooper also testified that he and the other jockeys received $25 for riding a winner and $10 for riding a loser in any flat race. This is in accordance with the provisions of rule 278 of the Horse Racing Board. He also testified that the stewards could prevent him from riding in any race and that, “The stewards at any time at all if Mr. Drillon went in there and said, ‘I don't want this boy to ride this horse,’ and the stewards could take me off his horse, if that is what you want to know.” He further testified that before each race a track official collected for each “free lance” jockey in that race the minimum fee of $10; that on each Saturday the turf club paid him the total fees collected for the races in which he had ridden during the preceding week.

Respondents urge that the foregoing evidence clearly supports the finding of the commission that Hooper was an employee of Drillon because the latter had the right to and did direct the former as to the manner in which he should handle the mount in the race.

Petitioner urges with equal sincerity that the instructions given by Drillon were general in their terms and had as their purpose the result to be accomplished, that of winning the race, and not the method, in its particulars, of riding the horse by which that end was to be accomplished. He urges that it was impossible for him to exercise such control over Hooper when riding in the race because there was no way in which he could communicate directions to the jockey.

While instructions were given Hooper, they were not nearly so specific as those given an independent contractor who undertakes to erect a building under well-drawn and detailed plans and specifications. The instructions given here might be construed as merely acquainting Hooper with the characteristics of the horse he was about to ride, to enable him to ride an intelligent and, if possible, successful race. When so construed the instructions bore on the results to be accomplished more than upon the means of accomplishing them. Further, the fact that Hooper was to be paid $25 in case he won the race and only $10 in case he lost, would indicate that the owner was relying on his skill and ingenuity as a rider to bring the horse in a winner, as a jockey cannot rely entirely on prior instructions to meet every emergency that suddenly changing conditions present during a race. If a jockey were required to ride as an automaton according to prior instructions, there would be no sound reason for giving him a reward for winning, for it would be the horse, not the horse and jockey, that would win the race.

On the other hand, the fact that the owner has no available means of communicating instructions to the jockey during the actual running of a race cannot be controlling here. It is the question of the right of control, not the exercise of that right that must assist in determining the relation of the owner and the jockey.

However, there are factors other than the right of control, or its absence, that are important in determining whether Hooper was Drillon's employee or an independent contractor. They are the right of Drillon to discharge Hooper and the right of Hooper to refuse to ride without invoking penalties for breach of contract.

Counsel for the Industrial Accident Commission advises us that he has been informed by the secretary of the California Horse Racing Board and officials of the Tanforan race track that the rules have been interpreted “to mean that only the jockey who actually rides the horse is entitled to the fee and that a jockey who does not actually ride is entitled to nothing, although he may have an agreement to ride and may have reported to the track and waited in readiness to ride”. Be that as it may, we must examine the racing rules to determine, if we can, the right of the owner to refuse to let a jockey he has engaged, ride a race, and the right of a jockey thus engaged, to refuse to ride. Hereafter we will refer to the several “Rules of Racing adopted by the California Horse Racing Board” by the rule number only.

Rule No. 122 provides that all jockey fees shall be received by the clerk of the course. Rule No. 158 provides that no free lance jockey shall be weighed out for any race until his fee for a losing mount in such race shall have been so deposited or guaranteed and the failure to make such deposit or guarantee “shall declare the horse out of the race”. Rule 149 provides that any change of jockey “shall be exhibited by the Clerk of the Scales upon the notice board”. Rule 292 provides as follows: “When an owner or trainer shall discharge a jockey, groom or attendant, he shall, upon demand of the employee give a written statement of discharge setting forth the cause thereof. Upon refusal to do so the owner or trainer may be fined or suspended.”

We have been cited to and find no rule which in so many words provides just what the clerk of the course must do with the jockey fee deposited with him, in case the engaged jockey is not permitted by the owner to ride. It may be inferred from rule 292 that the discharge of a jockey may not be capricious.

The rules governing the duties of the jockey, when once engaged to ride, are much more specific. Rule 279 provides as follows: “All jockeys shall register with the Racing Secretary the name of an agent who is authorized to accept mounts for them. Jockeys will be bound by acceptance of mounts by agents so named.” A jockey must report to the scale room one hour before the time of his race, shall weigh out from that room unless excused by the stewards and shall not leave the scale room, except to ride in a race, until all his engagements for the day have been fulfilled. “No one but jockeys, attendants and officials shall be permitted in the Scale Room or Jockey Room.” Rule 274. Rule 281 provides as follows: “If a jockey, engaged for a certain race or for a specified time fails or refuses to abide by his agreement, unless excused by the Stewards, he shall be fined or suspended; and if a jockey refuses to ride a horse on the order of the Stewards he shall be reported to the Racing Board.”

It is clear from the foregoing rules that a jockey, once engaged by an owner, is required to ride in the race in which the owner's horse is entered, under pain of much more severe penalties than that of damages for breach of contract. He does not have the right to terminate his engagement. The right to quit is one of the incidents of the relation of employer and employee. He is bound by his contract to ride and cannot break it without subjecting himself to punishment. This is an incident of independent contract and negatives the theory of employment. If the jockey is bound by contract it would seem to follow that the owner also should be considered so bound, if there is no rule to the contrary. We have failed to find any such rule.

The right of the employee to quit his work before completion, and the equal right of the employer to so discharge his employee, are necessary incidents of the relation of employer and employee. The absence of these rights negative such a relation and point to that of independent contract. See Press Pub. Co. v. Industrial Acc. Comm., 190 Cal. 114, 210 P. 820; Bohanon v. James McClatchy Pub. Co., 16 Cal.App.2d 188, 60 P.2d 510; Batt v. San Diego Sun Pub. Co., 21 Cal.App.2d 429, 69 P.2d 216; Los Flores School Dist. v. Industrial Acc. Comm., 13 Cal.App.2d 180, 56 P.2d 581.

As there is no evidence in the record indicating in the slightest degree that Hooper had the right to quit his engagement and refuse to ride, and as all of the evidence is to the contrary, we must conclude that the relation between Drillon and Hooper was that of independent contract and not that of employer and employee. Because Hooper was not an employee, the Industrial Accident Commission had no jurisdiction over the case and had no power to make the award in question here.

Respondents rely upon the cases of Moore v. Clarke, 171 Md. 39, 187 A. 887, 107 A.L.R. 924, and Pierce v. Bowen, 247 N.Y. 305, 160 N.E. 379, as controlling and requiring us to hold that Hooper was an employee of Drillon. The first-cited case cannot be distinguished factually (except as to racing rules) from the instant case. We are not able to determine whether or not there were in effect, in Maryland, rules similar to those in force here. We regard those rules controlling as establishing the fact of independent contract which may distinguish the instant case from those just cited.

The award is annulled.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.