RISKIN ET AL v. INDUSTRIAL ACCIDENT COMMISSION ET AL

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

RISKIN ET AL. v. INDUSTRIAL ACCIDENT COMMISSION ET AL.

Civ. 13939.

Decided: March 11, 1943

Overton, Lyman & Plumb and L. K. Vermille, all of Los Angeles, for petitioners. Everett A. Corten and Fred G. Goldsworthy, both of San Francisco, for respondents.

Petitioners seek to annul an order of respondent Industrial Accident Commission directing them to pay compensation benefits to respondent A. F. Miner for injuries which he is alleged to have received during the course of and as the result of his employment by petitioners.

The evidence being viewed in the light most favorable to respondents, the essential facts are:

In March, 1942, petitioners were jointly engaged in mining operations on a claim known as Ruby Quartz near Shoshone, California. Petitioner Morris on behalf of the joint venture contacted Mr. Brown, the operator of a general store at Shoshone, and told him that petitioners wanted some tunnel work done on the mining claim; that if he knew anyone who would take a contract and furnish everything and do the work for $7 a foot, to send such party to see petitioner Riskin.

Thereafter Mr. Brown told Mr. Casey, an experienced miner, of his conversation with Mr. Morris, whereupon Mr. Casey and respondent Miner examined the mining claim, after which Mr. Casey told Mr. Brown that they would take the job.

An agreement was entered into between Mr. Casey on behalf of himself and Mr. Miner, with Mr. Brown acting as agent for petitioners. This oral agreement provided that Messrs. Casey and Miner would drive a tunnel on petitioners' claim not to exceed 40 feet; that petitioners would furnish the tools; and that everything else necessary for the work such as transportation, water, powder, fuses, caps, et cetera would be furnished by Messrs. Casey and Miner, they to receive $7 for each foot the tunnel was driven. It was mutually agreed that Messrs. Casey and Miner might quit at any time they desired, and that petitioners might terminate the agreement at their pleasure.

Shortly thereafter, petitioner Riskin accompanied by Messrs. Casey and Miner went to the claim and pointed out to them where the work was to be done, stating that the tunnel should be driven to the left in order to meet with an incline shaft already located on the property.

April 18, 1942, while working in the tunnel, respondent Miner was injured by the premature explosion of dynamite. At the time of the accident the tunnel had been driven 31 feet. Messrs. Casey and Miner decided not to proceed further with the work, a settlement being made with them for the work performed in accordance with the agreement of the parties.

Petitioners urge annulment of the award on the proposition that Messrs. Casey and Miner were independent contractors and not their employees at the time Mr. Miner was injured.

This proposition is tenable and is governed by this pertinent rule of law:

An independent contractor is one who renders service for another for a specified recompense to attain a specific result, and who is under control of his principal only as to the result of the work and not as to the means or methods by which the result is to be accomplished. Sec. 3353, Labor Code St.1937, p. 267; Winther v. Industrial Acc. Comm., 16 Cal.App.2d 131, 135, 60 P.2d 342; Los Flores School Dist. v. Industrial Acc. Comm., 13 Cal.App.2d 180, 183, 56 P.2d 581; Valente v. Industrial Acc. Comm., 68 Cal.App. 151, 153, 228 P. 667; Roberts v. Industrial Acc. Comm., 52 Cal.App. 31, 33, 197 P. 978.

Applying the foregoing rule to the facts of the present case it is apparent that respondent Miner at the time of the accident in which he was injured, was engaged in rendering service to petitioners for a specified recompense which was being paid to attain a specific result, and that he was under the control of petitioners only as to the result of his work and not as to the means or methods by which that result was to be attained. He was therefore not an employee of petitioners, but was an independent contractor.

The fact that petitioner Riskin had pointed out to Messrs. Casey and Miner where the work was to be done, and had told them to drive the tunnel a little to the left in order that it might meet an incline shaft which had already been sunk, did not change the relationship of the parties to that of employer and employee. Winther v. Industrial Acc. Comm., supra, 16 Cal.App.2d 136, 60 P.2d 342; Provensano v. Division of Ind. Acc., 110 Cal.App. 239, 241, 294 P. 71.

Neither is it controlling that the agreement between the parties provided that it might be terminated any time either by petitioners or Messrs. Casey and Miner. Such fact is a mere circumstance in determining the question as to whether the relationship is that of employer and employee or of independent contractor. See 13 Cal.Jur. (1923) 1034, sec. 14; Parsons v. Industrial Acc. Comm., 178 Cal. 394, 396, 173 P. 585; Luckie v. Diamond Coal Co., 41 Cal.App. 468, 482, 183 P. 178. In this case it is clear that this privilege was merely a provision of the contract which the parties had made.

For the foregoing reasons the award of the Industrial Accident Commission is annulled.

The findings are that the applicant, A. F. Miner, sustained an injury arising out of and occurring in the course of his employment by petitioners; that the injury caused temporary disability. Upon such findings the commission made an award, the amount of which is not challenged.

The evidence discloses that petitioners were associated in the operation of the Ruby Copper Mine near Shoshone upon which they desired to have a tunnel excavated. Petitioners Eby and Riskin were the employees of petitioner Morris in his management of a talc mine near Ibec Springs. In order to procure the construction of the tunnel on the Ruby Copper Mine, petitioner Morris called at the store of Charles Brown at Shoshone and stated to the merchant that Messrs. Riskin and Eby wanted forty feet of work done on their copper mine; that if anyone would take a contract to furnish everything and to do the work at $7 a foot he should send such party over to see Mr. Riskin. Morris stated to Brown that the parties selected to do the work must have their own tools and equipment and transportation for the hauling of their water. But it was to be the privilege of such parties, as should undertake to do the work, to withdraw whenever they wished and they were to be paid at the rate of $7 per foot for the footage actually excavated. Casey and Miner called on Riskin who showed them the location and how to drive the tunnel, but gave them no instructions on how large to make it. Nor did Riskin thereafter inspect the work done by the men. After Miner suffered his injury as the result of a premature discharge, Casey called on Brown for a settlement for the 31 feet of tunneling done prior to the accident and was paid the sum of $217 for the work of the two men.

Basing their arguments in the main upon the foregoing facts shown by the testimony petitioners contended that the applicant was at work under an independent contract at the time of his injury. They cite section 3353, Labor Code; Los Flores School Dist. v. Industrial Acc. Comm., 13 Cal.App.2d 180, 56 P.2d 581; Lillibridge v. Industrial Acc. Comm., 4 Cal.App.2d 237, 40 P.2d 856; Winther v. Industrial Acc. Comm., 16 Cal.App.2d 131, 60 P.2d 342; State Compensation Insurance Fund v. Industrial Acc.Comm., 46 Cal.App.2d 526, 116 P.2d 173, and other authorities.

(1) However the record discloses other proof which, notwithstanding the foregoing facts, is sufficient to support the findings of respondent commission. The parties testified that Casey and Miner were at liberty to quit at any time they chose and that they could be discharged at the pleasure of petitioners. Moreover Morris understood that it was the privilege of Casey and Miner to quit at any time so long as they should be paid $7 per foot for the distance actually covered in the construction of the tunnel. Also, Mr. Brown testified that it is the rule in the Shoshone mining community under contracts to drive tunnels at a specified pay per foot that the party who does the excavating has the right to abandon the job at any time and be paid for the work actually done. If other proof were requisite to establish the understanding of the parties, the payment by petitioners for the 31 feet is sufficient.

(2) From the evidence in the instant case it is shown to be customary in mining districts where a person is employed to drive a tunnel that the foreman does not customarily supervise the work, but he gives general directions only. Detailed instructions for such work are not necessary. The details of such work are left to the judgment of those employed to construct the tunnel. From the fact that Riskin did not instruct Casey and Miner as to the size of the tunnel it was a reasonable inference that all of such tunnels are of a customary size. A certain amount of freedom of action was necessarily allowable by reason of the very nature of the work done by the applicant and his associate. But such freedom did not convert the relationship of master and servant into one of owner and independent contractor. Cameron v. Pillsbury, 173 Cal. 83, 86, 159 P. 149; Press Publishing Co. v. Industrial Acc. Comm., 190 Cal. 114, 120, 210 P. 820.

(3) Any person rendering service for another is presumed to be an employee unless it be otherwise expressly shown, Sec. 3357 Labor Code, St.1937, p. 268. The plea that an injured person claiming to be an employee is an independent contractor, or for other reason is excluded from the protection of division IV of the Labor Code, is an affirmative defense and the burden of proof rests upon defendant to establish his exemption. Sec. 5705, Labor Code; Hillen v. Industrial Acc. Comm., 199 Cal. 577, 580, 250 P. 570; Los Flores School District v. Industrial Acc. Comm., 13 Cal.App.2d 180, 56 P.2d 581. Because the applicant was not to be paid according to any unit of time does not establish that he was not a servant of petitioner. Wages may be measured by the piece, foot or any other standard agreed upon by the parties. Where a party was employed to clear up the brush in an orchard for the sum of $30 the owner reserving the right to discharge the workman in the event the work did not progress satisfactorily it was held to be an employment. La Franchi v. Industrial Acc. Comm., 213 Cal. 675, 3 P.2d 305.

In view of the fact that the testimony of the parties or the fair inferences to be drawn therefrom support the finding that either party to the agreement could have terminated the relationship at will without liability it is clear that the relationship of employer and employee between the applicant and the petitioner was established. 13 Cal.Jur. 1034. Petitioner at all times had the power of control over the manner of performing the work. Helmuth v. Industrial Acc. Comm., 59 Cal.App. 160, 210 P. 428; Press Publishing Co. v. Industrial Acc. Comm., supra; Hillen v. Industrial Acc. Comm., supra, 199 Cal. page 581, 250 P. 570. The fact that such power was not exercised by petitioners is beside the point. Where the contract initiating the relationship between the parties contains no express provision for or against the power of control the presence or absence of such power must be determined from the reasonable inferences to be drawn from all the circumstances surrounding the parties at the time of entering into the agreement as well as from the character of the parties, nature of the work and the conduct of the parties towards each other. Yucaipa Farmers Co–op. Association v. Industrial Acc. Comm., 55 Cal.App.2d 234, 237, 238, 130 P.2d 146. If upon a review of all the circumstances the trier of facts might fairly have determined either that there was or that there was not the right of control his finding is final. Chapman v. Edwards, 133 Cal.App. 72, 74, 77, 24 P.2d 211.

The award should be affirmed.

McCOMB, Justice.

W. J. WOOD, J., concurred.