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District Court of Appeal, Third District, California.


Civ. 7277.

Decided: October 23, 1946

Leonard, Hanna & Brophy, of San Francisco, for petitioner. R. C. McKellips and Edward A. Sarkisian, both of San Francisco, for respondents.

Dallas Walker, husband and father respectively of respondents Ruth Walker, and Richard, Beverly, Patricia and Cecilia Walker, minors, was fatally injured while transporting scaffolidng to a house under construction on which he was to do the lathing for Manuel Perguica, the owner ane one of the petitioners herein. An application for benefits was filed by the widow on behalf of herself and the respondent minor children. At the conclusion of the hearing thereon the commission found that the decedent was an employee as distinguished from an independent contractor, but also found that the injury was not compensable in that it did not occur in the course of his employment, and denied compensation. On petition of said respondents a rehearing was granted, and again the commission found that decedent was an employee of petitioner Perguica, but contrary to its former determination, found and concluded that the injury was compensable as one arising out of and occurring in the course of his employment.

We find no merit in the contentions advanced by petitioners (1) that decedent was an independent contractor, and (2) that even if it be conceded that he was an employee of Perguica nevertheless his injury did not arise out of or occur in the course of his employment.

The record discloses that Walker was engaged by petitioner Perguica to put up wire netting or screening which was to serve as lathing for the plaster that would be applied by one Witmer, who had a contract to plaster the house. The arrangement which said petitioner made with Walker was never completely carried out, as the latter was fatally injured before the wiring or lathing was actually commenced. Walker was brought to said petitioner's premises by Witmer and, according to petitioner, was introduced to him as the ‘fellow to do the job; to put the wires'. The conversation that ensued was mostly one-sided, Perguica informing the two men in more or less general terms what had to be done and what he would pay to have it done. Witmer was never called as a witness; so the nature of the conversation and its legal effect rest entirely upon the testimony of Perguica. While Mrs. Walker, the decedent's widow, testified as to the acts of her husband in loading and transporting the scaffolding, and as to the kind of work which he ordinarily did, she was not a party to the conversation and therefore her testimony sheds little if any light on the question of the relationship that was created between the decedent and said petitioner.

A summary of Perguica's testimony, omitting some facts already mentioned, is substantially as follows:

The carpenters who worked on his house were paid a daily wage; he had a contract with Witmer whereby the latter was to do the plastering for a lump sum; when Witmer brought Walker to him he informed them that the work of placing the wire screening or netting would be done on a yardage basis; he did not want any one else working on the house at day wages because ‘they can loaf around as much as they please’; he agreed to furnish the material and Walker agreed to put on the wire for 15 cents a yard; Walker gave him no estimate of the cost of the work; he did not tell Walker what to do because he did not know; he said nothing concerning any of the details of the job to Walker; at the time of their conversation it was late and he had other work to do; there was no discussion about price; nothing was mentioned regarding scaffolding; Walker just got the job and ‘afterwards I was going to pay him then.’ In conclusion he stated that he took Witmer's word that Walker was a good worker, and he agreed to pay Walker 15 cents a yard which, according to Witmer, was the price generally paid in that locality.

Under the provisions of section 5705(a) of the Labor Code the burden of proving that decedent was an independent contractor was cast upon the employer Perguica. The factual question thus presented was primarily a question to be determined by the commission. Industrial Indemnity Exchange v. Industrial Acc. Comm., 26 Cal.2d 130, 136, 156 P.2d 926; Riskin v. Industrial Acc. Comm., 23 Cal.2d 248, 255, 144 P.2d 16.

The many recent enunciations by our appellate courts of the rules for determining the existence of the employer-employee relationship within the meaning of the Workmen's Compensation Act would seem to make unnecessary further reiteration here. See, Baugh v. Rogers, 24 Cal.2d 200, 206, 148 P.2d 633, 152 A.L.R. 1043; Riskin v. Industrial Acc. Comm., supra, 23 Cal.2d at pages 253, 254, 144 P.2d at pages 18, 19; Burlingham v. Gray, 22 Cal.2d 87, 99, 100, 137 P.2d 9; Yucaipa Farmers etc. Ass'n v. Industrial Acc. Comm., 55 Cal.App.2d 234, 237, 238, 130 P.2d 146; Los Flores School Dist. v. Industrial Acc. Comm., 13 Cal.App.2d 180, 183, 56 P.2d 581. Suffice it to say that, although the manner of entering into the relationship herein was informal and the evidence relating thereto neither extensive nor definite, nevertheless that is not to say that such evidence was not sufficient to support the inferences drawn therefrom and the findings made by the commission. Even if such evidence was as reasonably subject to the inferences now advanced by petitioners as those deduced by the commission, we cannot say as a matter of law that the determination reached by the commission is incorrect. Industrial Indemnity Exchange v. Industrial Acc. Comm., supra, 26 Cal.2d at page 136, 156 P.2d at page 929; Riskin v. Industrial Acc. Comm., supra, 23 Cal.2d at page 255, 144 P.2d at page 19.

The question raised by petitioners' second contention, whether the injuries arose out of or occurred in the course of the employment, likewise was at issue in the Industrial Indemnity Exchange case. There the court stated, 26 Cal.2d at page 136, 156 P.2d at page 929, that,

‘Whether an employee's injury occurred in the course of his employment is a question of fact to be determined in light of the circumstances of the particular case. San Bernardino County v. Industrial Acc. Comm., 217 Cal. 618, 20 P.2d 673; Griffin v. Industrial Acc. Comm., 19 Cal.App.2d 727, 66 P.2d 176.

‘It is generally said that “an employee is in the ‘course of his employment’ when he does those reasonable things which his contract with his employer expressly or impliedly permits him to do.” Hartford A. & I. Co. v. Industrial Acc. Comm., 202 Cal. 688, 691, 262 P. 309, 310, 58 A.L.R. 1392; State Comp., Ins. Fund v. Industrial Acc. Comm., 194 Cal. 28, 33, 227 P. 168. In view of the policy of liberal construction in favor of the employee, any reasonable doubt as to whether the act performed at the time of injury was contemplated by the employment should be resolved in favor of the employee. Matthews v. Naylor, 42 Cal.App.2d 729, 109 P.2d 978; Employers' etc. Corp. v. Industrial Acc. Comm., 37 Cal.App.2d 567, 99 P.2d 1089.'

However, petitioners contend that, because of the lack of evidence that Perguica knew the scaffolding was necessary, Walker's acts in connection with the transportation thereof were no concern of his, that they were done on Walker's own time, and therefore that they were not acts performed in the course of decedent's employment. In answering a similar contention the Supreme Court, in San Bernardino County v. Industrial Acc. Com., 217 Cal. 618, 624, 625, 20 P.2d 673, 675, said: ‘Ordinarily, the purpose of the act of the employee out of which the injury arose, rather than the method of its performance, determines whether he was injured while within the course of his employment, unless the act, even though intended to forward the purpose of the employer, was of such an exceptional and unusual nature that it could not reasonably be said to be within the scope of the employment. Standard Lumber Co. v. Industrial Acc. Comm., 60 Cal.App. 331, 212 P. 720.’

Whether or not the need for a scaffold was discussed seems to be immaterial. The job of placing the wire netting on the house necessarily must have contemplated the use of scaffolding of some kind, and as none was upon the premises it became necessary either to build such equipment thereon or transport in thereto, prior to the commencement of the work. Walker's acts in doing either would be equally beneficial to his employer and equally essential to his employment. It therefore appears that in this regard the inference which the commission drew was entirely reasonable under the circumstances.

Nor do we find anything to the contrary in this cases cited and relied upon by petitioners: Postal Telegraph Cable Co. v. Industrial Acc. Comm., 1 Cal.2d 730, 37 441, 96 A.L.R. 460; Holopoff v. Industrial Acc. Comm., 131 Cal.App. 554, 21 P.2d 649; Eby v. Industrial Acc. Comm., 75 Cal.App. 280, 242 P. 901. The first two are illustrative generally of the ‘going and coming’ rule where the employee was acting primary for his own benefit and not that of his employer, while the third case cited by petitioners, namely, Eby v. Industrial Acc. Comm., suggests the true rule applicable to the facts herein presented.

In the case of Goodrich v. Industrial Acc. Comm., 22 Cal.2d 604, 608, 140 P.2d 405, 407, the court, in reversing an order of the commission denying compensation to the dependents of one who was fatally injured while traveling from his place of employment to his home in order to discharge a duty which would further the interests of his employer, stated: ‘It has been said that even though an employee may be going to or from his place of employment on a mission personal to himself if he is also on a sbustantial mission of his employer which is the major factor in the movement, he may still be said to be within the course of his employment.’

For the foregoing reasons the award is affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.

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