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


Civ. 14032.

Decided: June 16, 1943

Paul Nourse, of Los Angeles (Everett W. Thompson, of Los Angeles, of counsel), for appellants. Russell H. Pray and Robert E. Krause, both of Long Beach (Samuel J. Nordorf, of Long Beach, of counsel), for respondent.

Plaintiff commenced this action to recover for injuries which were suffered when she was struck by an automobile owned by defendant Warnock and driven by defendant Rogers. At a trial by the court without a jury a judgment was rendered in favor of defendants. Thereafter plaintiff's motion for a new trial was granted upon the ground, among others, of the insufficiency of the evidence to justify the decision. From this order defendants have appealed.

The accident occurred on July 22, 1941, in the city of Long Beach. Plaintiff was cleaning the offices of defendant Rogers, a physician and surgeon, when she was struck by an automobile which, according to the allegations of the complaint, was being negligently backed by defendant Rogers along the driveway running by his office. The automobile was owned by defendant Warnock, who had given permission to defendant Rogers to use it. By their answer defendants denied negligence, asserted contributory negligence on the part of plaintiff, and especially pleaded that the superior court was without jurisdiction in the matter for the reason that plaintiff's injuries occurred in the course of her employment in cleaning the offices of Dr. Rogers. The trial court found that plaintiff was injured while acting in the course and scope of her employment and that the injuries arose out of her employment. The court also found that defendant Rogers elected to be bound by the provisions of the Labor Code, St.1937, p. 185, that he had insured against liability for compensation to all persons employed by him and that plaintiff did not at any time give notice that she elected not to be subject to the provisions of the Labor Code. From these findings the court concluded that it did not have jurisdiction but apparently reached a different conclusion when at a later date it granted the motion for a new trial.

Plaintiff asserts that there is a conflict in the evidence and, relying upon the rule that where reasonable minds might differ in their deductions from the evidence the trial court is justified in granting a new trial (Ogando v. Carquinez Grammar School Dist. 24 Cal.App.2d 567, 75 P.2d 641), contends that the trial court did not abuse its discretion in the present case. On the other hand, defendants contend that in any view of the evidence presented the superior court is without jurisdiction in the matter. They rely upon the rule that a new trial may not be granted to the plaintiff if in any event a judgment must be rendered in favor of the defendant. Wall v. Equitable Life Assur. Soc., 33 Cal.App.2d 112, 91 P.2d 145; Mercantile Trust Co. v. Sunset, etc., Co., 176 Cal. 461, 478, 168 P. 1037.

Plaintiff bases her contention that the superior court has jurisdiction in the matter mainly upon the assertion that she was an independent contractor and therefore was not limited to the presentation of her claim to the Industrial Accident Commission. Dr. Rogers maintained offices at his residence, a two–story house in which surgery and reception rooms were maintained on the first floor. These rooms were used by Dr. Rogers in the practice of his profession. Plaintiff placed an advertisement in a newspaper offering her services in house cleaning. The wife of Dr. Rogers answered this ad and employed plaintiff to do house cleaning in both parts of the house, those occupied as a residence and those maintained for professional services. She received 35¢ per hour plus car fare, a sum which was later increased to 40¢ per hour. Plaintiff generally worked on the Rogers premises one day each week but sometimes more often. There was no agreement that she should work any certain number of hours per day but in fact she generally worked eight or nine or ten hours per day, depending upon the amount of work to be done. Plaintiff used the vacuum cleaner and soap which she found in the house but there is a conflict of testimony concerning the use of other equipment which was available. Plaintiff testified that she used her own mops and other equipment and for the purposes of this motion her testimony must be taken as true. Concerning a conversation with Mrs. Rogers at the time she was employed plaintiff testified: “I had advertised I was an expert house cleaner, window and wall washer; she wanted to know if I was capable of going through the work of the house if she would tell me what to do, and I said, ‘Certainly I am; I can clean your home well, that is all I do, is house cleaning and window washing.’ She said, ‘I am glad to find some one to go through with the work without bothering.’ * * * Directing your attention to Mrs. Rogers, when you came out there did you have a conversation with her about the nature of your work, what was to be done? A. She told me exactly what to do and left me, and I went through it. Q. How often did you work for her? A. Whenever she could get me. Lately I have not been working every week for her because she could not get me.” Upon her arrival upon the premises to begin work plaintiff was often directed by Mrs. Rogers to begin her work in a specific portion of the house and was instructed by Mrs. Rogers as to what work was to be done first on the particular day. Sometimes the instructions were changed. Plaintiff had been working on the premises for several months before the date of the accident. During this period she also worked at other residences.

Plaintiff was engaged in cleaning the offices of Dr. Rogers on the day of the accident. She testified: “Well, I was cleaning the Doctor's office. She told me if I ever found the window open, to call her. (If) I could not fasten it, to call her and she would help me fasten it. So I called upstairs to her and she came down. She sent me outside to push and jam the window in, while she was holding and pulling on it on the inside. All of a sudden she threw up her hands and said, ‘Ora, watch out.’ I just had time to whirl around. I was standing right up against the house. He hit me and pinned me onto the house, hit me on the knee and crushed my leg into the back of the house.”

The only reasonable construction to place upon the evidence is that plaintiff was not an independent contractor. In section 3353 of the Labor Code, St.1937, p. 267, an independent contractor is defined as one “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished”. Plaintiff was not employed for a specified recompense for a specified result; rather she was employed to do cleaning work on the premises of Dr. Rogers at a certain price per hour when she worked. Plaintiff was not employed to clean the premises for a definite price. The employer could and did give directions as to what work should be done, whether it should be washing windows or cleaning floors or walls. The employer directed whether she should work upstairs or down or whether she should work in the domestic or business portion of the premises. At the moment of the accident plaintiff was working under the specific directions of Mrs. Rogers.

Many cases have come before the reviewing courts of California in which the question before the court involved a determination whether the injured party was an independent contractor. Some of these cases have been frequently cited and reviewed and there is no occasion to here present another review of the decisions on the subject. Although various elements frequently enter into the solution of the problem, it is generally recognized that the important test by which to determine whether a person is acting as an independent contractor or as an employee involves an answer to the question whether the person at the time of the injury was subject to the orders and control of the other party. The important element is the right of control, whether the right be exercised or not. Chapman v. Edwards, 133 Cal.App. 72, 24 P.2d 211; Hillen v. Industrial Acc. Comm., 199 Cal. 577, 250 P. 570. Before plaintiff commenced work she was asked if she was capable of doing the work if she was told what to do. Mrs. Rogers did in fact lay out the work for plaintiff and told her what to do. For this she was paid an hourly wage. Plaintiff refers to the fact that Mrs. Rogers sometimes departed from the house, leaving plaintiff to do her work. The fact that Mrs. Rogers did not stand by and direct the work while plaintiff was cleaning the premises does not justify the conclusion that plaintiff was not an employee. It is seldom that employers direct employees in the minute details of their conduct. It is clear that at all times Mrs. Rogers had the right of control over the activities of plaintiff. A holding that one engaged to do house–cleaning for an hourly wage in an establishment such as that of Dr. Rogers is an independent contractor would do violence to the generally accepted concept of the status of those engaged in such services. The evidence being reasonably susceptible of the single inference that plaintiff was not an independent contractor, the question is one of law for the court. Chapman v. Edwards, supra, 133 Cal.App. page 79, 24 P.2d 211.

Since plaintiff at the time of the injury was cleaning the offices of Dr. Rogers, the employment was in the course of the profession or occupation of her employer. Section 3355 of the Labor Code St.1937, p. 268, provides: “ ‘Course of trade, business, profession or occupation of his employer’ includes all services tending toward the preservation, maintenance, or operation of the business, business premises, or business property of the employer.” It could not be reasonably argued that the cleaning of the windows and doors of a factory would not tend toward the maintenance and operation of the business. The same reasons apply to the cleaning of the offices of a physician. Although plaintiff worked partly in cleaning the residence, she none the less was actually engaged at the moment of the injury in the performance of duties which tended towards the maintenance and operation of the business premises of her employer. Where the activities of an employee involve several types of work the question whether his remedy is to seek the compensation benefits under the provisions of the Labor Code or to seek redress in the courts depends upon the nature of his employment at the moment of the injury. The dual capacity of an employee has been recognized by the courts of California. Kramer v. I.A.C., 31 Cal.App. 673, 161 P. 278; Lacoe v. I.A.C., 211 Cal. 82, 293 P. 669. In the Kramer case one Ohlsson was an employee of Kramer, who conducted a dancing academy in a building which was also used by him as a residence. Ohlsson was employed as a janitor to clean the rooms of the dancing academy and was also employed as a gardener to care for the flowers and shrubbery on the adjoining land. It was held that: “Ohlsson was thus employed for the performance of services in two capacities: One that of janitor, falling within the terms of the act; the other as a house and garden laborer; employés engaged therein being excluded from its operation” [31 Cal.App. 673, 161 P. 279]. He was injured while pruning a tree in an adjoining driveway. The court held that Ohlsson's injury “arose out of and was in the course of his employment, not as a janitor, but while engaged in garden labor” and that the award of the I.A.C. should be annulled.

It is provided in section 3601 of the Labor Code, St.1937, p. 269, as follows: “Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in section 3706, the exclusive remedy against the employer for the injury or death.” Section 3706 of the Labor Code, St.1937, p. 271, has no application to this action for it was established that Dr. Rogers secured the payment of compensation to his employees by procuring the insurance policy referred to in the section. Since the conditions of compensation exist in accordance with the provisions of the Labor Code, the superior court was without jurisdiction to entertain the action against Dr. Rogers.

Defendant Warnock is in a different situation. He is the owner of the automobile involved in the accident and Dr. Rogers was operating it with his permission. Under the provisions of section 402(a) of the Vehicle Code, St.1937, p. 2353, the negligence of Dr. Rogers is imputable to defendant Warnock, who is liable to the limited extent fixed in the code section. The liability of the owner of a vehicle under this section “is a primary and direct liability and not a secondary one in so far as the injured party is concerned”. Broome v. Kern Valley Packing Co., 6 Cal.App.2d 256, 261, 44 P.2d 430, 432. The owner of the vehicle is directly liable for damages suffered in an amount limited by the statute, a liability which is direct and several, as well as joint, and is not dependent on a judgment against the operator of the car. Holland v. Kodimer, 11 Cal.2d 40, 77 P.2d 843; Phipps v. Superior Court, 32 Cal.App.2d 371, 89 P.2d 698.

Plaintiff was not an employee of defendant Warnock. As against him plaintiff can pursue her remedy in the superior court.

The order is affirmed as to defendant Warnock. It is reversed as to defendant Rogers.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.