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District Court of Appeal, Second District, Division 2, California.


Civ. 12641

Decided: July 11, 1940

Donald Gallagher, of San Francisco, and Marguerite Arnold, of Los Angeles, for petitioners. Everett A. Corten and Dan Murphy, Jr., both of San Francisco, for respondents.

Macerio Valdez was injured in the course of his employment while picking melons on land leased by petitioner Gerrard Company to respondent Hanaoka. He filed a claim with respondent commission and obtained an award against respondent Hanaoka and the State Compensation Insurance Fund, insurance carrier for petitioner Gerrard Company. The State Compensation Insurance Fund and the Gerrard Company have filed a petition to annul the award.

Petitioners contend that the finding of the commission that Valdez was at the time of his injury employed by the Gerrard Company is not supported by the evidence. Three written instruments executed by Hanaoka and the Gerrard Company were received in evidence. By one of the instruments, the “agreement of lease” the Gerrard Company leased to Hanaoka 80 acres of land for a specified term for a total rental of $3,200 for the purpose of growing melons “as may be directed” by the Gerrard Company. The lease incorporates and refers to the other two instruments, called the “distributing agreement” and the “crop mortgage”. The crop mortgage makes the crop security for the payment of the rental. The distributing agreement contains detailed provisions for growing, picking and shipping the melon crop, specifying certain acts to be done by the Gerrard Company as follows: To perform all engine work necessary to prepare the premises for planting melons; to haul said melons when picked and gathered from said premises to the Gerrard Company's packing shed, and there to sort, pack and load the same onto cars and truck; to market and distribute the melons until a date specified. The grower (Hanaoka) specifically agreed to prepare the premises for planting and to plant the same with such crops as should be directed by the Gerrard Company; after such planting to care for and gather the melons into field crates and load them onto equipment to be furnished by the Gerrard Company. The grower further specifically agreed to furnish all labor, material, equipment and supplies necessary for proper farming of the premises at his own cost and expense.

Petitioners rely upon Winther v. Industrial Accident Comm., 16 Cal.App.2d 131, 60 P.2d 342, a case in which the facts bear a striking similarity to the facts of the present proceeding and which must be determinative of the issue now before us. In that case Winther entered into an oral contract with Rueda whereby Rueda agreed to pick the entire crop of Winther's olives and to haul them to the packing house at the rate of $16 per ton. Rueda hired a number of men to assist him in the picking and paid them for their work at the rate of 26 or 27 cents per box. One Robles who had been hired by Rueda was injured while picking the olives. Before the injury Winther walked through the orchard and told several of the workmen, including Robles, to pick the olives clean and to take the leaves from the boxes in which the olives were deposited when they were removed from the trees. Winther testified that “the understanding was that if I didn't want the men he would not bring them back”. Rueda testified that Winther had the right to discharge Robles if he did not like his work and that “Winther had told him which men to fire but he just hired them”. Robles testified that before he commenced work on the morning of the accident Winther directed that he take the leaves from the boxes, pick the olives clean and watch the boxes. On these facts the court annulled an award which had been made against Winther, holding that the relationship existing between Winther and Rueda was not that of employer and employee and that Rueda was an independent contractor.

In attempting to distinguish the present case from the Winther case respondents point to the fact that the lease provides that Hanaoka was bound to grow “cantaloupes, honeydews or honeyballs as the party of the first part (Gerrard Company) may direct”; and that the distributing agreement provided that “all picking shall be under the supervision, and in accordance with the directions of the Gerrard Company”. Respondents also refer to the statement of the representative of the Gerrard Company, who testified that “if the fruit wasn't picked in accordance with the standards we have set up, I call that to the attention of Mr. Hanaoka”. We are satisfied that the facts shown in evidence are not sufficient to sustain the finding that Valdez was an employee of the Gerrard Company. Hanaoka had the right to hire and to discharge the workmen engaged in picking the melons and had the right to control their activities while they were so engaged. This cannot be said of the Gerrard Company, which was interested in the result of the work performed by the employees of Hanaoka. The representative of the company testified that if the fruit was not properly picked he took the matter up with Hanaoka, thus negativing the claim that the company had the right to control the pickers. In order to sustain the award against the Gerrard Company it must be shown that Valdez was its employee and that the company had the right to control the method and manner in which he performed his work. “The test of ‘control’, however, means ‘complete control.’ ” Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 811, 159 P. 721, 723. No such showing was here made.

The award is annulled.

WOOD, Acting Presiding Justice.

I concur: McCOMB, J.