CALIFORNIA EMPLOYMENT COMMISSION v. BATES ET AL

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

CALIFORNIA EMPLOYMENT COMMISSION v. BATES ET AL.

Civ. 14145.

Decided: November 04, 1943

Robert W. Kenny and Clarence A. Linn, both of San Francisco, and Forrest M. Hill and Doris H. Maier, both of Sacramento, for plaintiff and appellant. William M. Crandall, E. M. Wachner, and John C. Campbell, all of Los Angeles, for defendants and respondents.

From a judgment in favor of defendants after trial before the court without a jury in an action for the collection of unemployment insurance taxes alleged to be due for the period from January 1, 1936, to and including March 31, 1940, under the provisions of section 38 and 40 of the California Unemployment Insurance Act, St.1935, pp. 1232, 1233, plaintiff appeals.

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

Defendants published and distributed throughout the City of Pasadena and its environs a newspaper of general circulation as defined in section 4460 of the Political Code. The publication was known as the “Pasadena Independent,” and was delivered on Monday, Wednesday and Friday of each week. The actual distribution being performed by carrier boys practically all of whom were under the age of eighteen years. Defendants entered into a written contracta1 with each of the carrier boys which contained the terms and conditions under which they made deliveries of the Pasadena Independent. The carrier boys purchased from defendants papers at the rate of $7.50 per one hundred copies. The subscription price to the subscribers was fifteen cents per month. The carrier boy received half of the subscriptions which he collected, with a minimum guarantee by defendants that he would receive at least five dollars per month.

Defendants did not require the carrier boys (a) to deliver the paper to every house in their territory, though defendants told the boys if they did so, their earnings would be larger; (b) to have bicycles nor to rig their bicycles if they had them, but if asked by the carrier boys how other boys rigged their bicycles for carrying papers, defendants' circulation manager would explain the manner of rigging a bicycle in detail; (c) to pick up the papers at any particular time; (d) to make distribution of the Pasadena Independent within any particular length of time or on the day the paper was available for distribution. However, the customers frequently asked to receive the paper on the day it was available for distribution; (e) to fold the papers in any particular manner, but if asked by the carrier boys, defendants showed them how other boys folded papers; (f) to call on the customers to make collections, however, defendants urged the boys to do so; (g) to attend meetings, or (h) to perform any other service than those the boys agreed to perform by the terms of the contract.

Defendants did not tell the carrier boys not to put the papers on sidewalks or lawns, but did tell the boys that customers usually requested that papers be put on the porch, and the boys were told they would please more people by so doing. Likewise, defendants urged the boys to throw papers for stores into the stores or under the door, but did not require it. Most of the carrier boys used their own paper bags, though some were sold to them by defendants.

This is the sole question necessary for us to determine:

Was there substantial evidence to sustain the trial court's finding that the carrier boys were independent contractors and not employees of defendants?

This question must be answered in the affirmative and is governed by the following pertinent rules of law:

(1) When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (In re Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720; 2 McK. Dig. (1930) page 701, Appeal and Error, sec. 1235.)

(2) It is the general rule that on appeal an appellate court will (a) view the evidence in the light most favorable to the respondents (b) not weigh the evidence (c) indulge all intendments which favor sustaining the finding of the trier of fact, and (d) not disturb the finding of the trier of fact if there is substantial evidence in the record in support thereof. (People v. Dukes, 90 Cal.App. 657, 659, 266 P. 558; California Emp. Comm. v. Betthesda Foundation, 54 Cal.App.2d 348, 350, 128 P.2d 874.)

Applying the foregoing rules to the facts of the instant case, it is evident that the facts set forth above, which are supported by substantial evidence in the record, clearly sustain the finding of the trial court that the carrier boys acted as “independent contractors” in making deliveries of the Pasadena Independent for defendants, and that the carrier boys were not employees of defendants. Further discussion of the evidence would serve no useful purpose.

Most of defendants' arguments have been fully answered in the cases of Batt v. San Diego Sun Pub. Co., Ltd., 21 Cal.App.2d 429, 69 P.2d 216, and Bohanon v. James McClatchy Pub. Co., 16 Cal.App.2d 188, 60 P.2d 510. The facts in these cases, including the contracts involved, were analogous to the facts in the case now before us, and the question presented for decision was identical with the question before us in the instant case. In each of the cited cases it was held that the contract created the relationship of independent contractor and not of employee or master and servant. (See also Mountain Meadow Creameries v. Industrial Acc. Comm., 25 Cal.App.2d 123, 76 P.2d 724.)

The case of Press Pub. Co. v. Industrial Acc. Comm., 190 Cal. 114, 210 P. 820, is factually distinguishable from the case at bar for the reason that in such case it was conceded that the carrier was employed upon the same basis as other carriers who were admittedly employees of the Press Publishing Co.

Likewise, cases from other jurisdictions cited by plaintiff, which reach a conclusion contrary to ours are not of assistance to us in view of the decisions of our own appellate courts upon the question here involved. (Chaney v. Los Angeles County, etc., Retirement Board, 59 Cal.App.2d 413, 138 P.2d 735.)

For the foregoing reasons the judgment is affirmed. The purported appeal from the order denying the motion for a new trial is dismissed. (See 2 McK.New Cal.Dig. (1930) 129, Appeal and Error, sec. 74, and Supp. thereto.)

FOOTNOTES

1.  The typical form of contract was as follows:AgreementRoute Carrier's ContractThis Agreement made this _ of _, 19––, at Pasadena California, by and between the Pasadena Independent, hereinafter called the “Company,” and _ of _, California, hereinafter called the “Carrier.”Witnesseth:That in consideration of the promises hereby agreed to be performed by the Carrier, the Company, publishers of the Pasadena Independent, hereby leases to the Carrier, the paper route known as Route Number _, upon the following terms and conditions:1. The Carrier understands and agrees that he is not an employee of the Company, but is an independent contractor and as such, shall furnish and provide at his own expense, all equipment required by him to operate his route.2. The Carrier promises to deliver the Pasadena Independent each Monday, Wednesday and Friday to every subscriber on this route at the earliest possible moment and in a manner satisfactory to the subscribers and to obey all State Laws and City Ordinances and do all in his power to increase the number of subscribers to the Pasadena Independent.3. The Carrier promises that he will pay the Company at its office in Pasadena, on or before the 10th of each month for all papers supplied to him by the Company for delivery to regular subscribers during the previous month at the rate of $7.50 per One Hundred (100) copies, and that the price of the Pasadena Independent shall be 15¢ per month. The Carrier to make all collections monthly from every subscriber. The Carrier also agrees to pay to the Company in addition to his regular paper bill, 50% of all collections from new subscribers gained through the use of sample copies, which sample copies the Company agrees to furnish free of charge to the Carrier who is authorized to distribute them in such a manner as he in his judgment may deem best for the purpose of securing new subscribers for the route.4. It is understood that until the bill for all papers received by the Carrier during the previous month has been paid, all money collected by said Carrier from the subscribers shall belong to the Company. It is further agreed that all advance payments on Pasadena Independent subscriptions made by the subscribers to the Carrier shall be paid to the Company when said subscription is paid in advance for a period exceeding 31 days. Any money thus received will be held by the Company for the purpose of reimbursing the Carrier monthly, as said advance subscriptions mature.5. It is understood that the title of the route shall remain in the Company and the Carrier shall have no right or ownership in the goodwill and the subscription list. The Carrier agrees that he will not sell, assign or transfer, either voluntarily or involuntarily, any interest in this route or in this agreement. The Carrier has the exclusive right to sell and deliver Pasedena Independents in the territory covered by this route under the terms of this agreement, but this shall not include the right to sell said papers to newsboys or news stands.6. The Carrier shall have the right to cancel this agreement upon giving the Company one week's notice and upon ending this relationship, shall return to the Circulation Manager of the Company, the route book and subscription lists.7. The Carrier agrees that if in case of sickness, or for any other reason he cannot deliver or collect his route, he will hire a substitute, or will notify the Company at once so that a substitute may be secured and paid for at his own expense.8. The Company reserves the right to take over and assume charge of the route at any time, in event that the Carrier fails to comply with this agreement.9. It is understood that the Carrier shall furnish his own means of transportation on the route and the Carrier is urged to provide adequate liability insurance which will protect himself and relieve the Company of any claims for liability resulting from accident, collision, fire or theft.10. The Carrier agrees to deposit with the Company the sum of $1.00 in cash, which sum the Company agrees to refund at the time this lease is cancelled. It is agreed and understood the above mentioned cash deposit will not be returned to the Carrier until his successor has received all route lists containing full and complete addresses of all Pasadena Independent subscribers on this route, and has a reasonable length of time to verify collections.11. The Company guarantees that the Carrier's profit derived from the sales of papers on this route shall not be less than $_ per month and that the average earnings on this route during the past year has been: $_.The Pasadena IndependentBy _Circulation Manager.Carrier _Approved _

McCOMB, Justice.

We concur: MOORE, P. J., and W. J. WOOD, J.