WHITAKER v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 3, California.

WHITAKER v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 17423.

Decided: July 25, 1950

Nichols, Cooper & Hickson and R. G. Lamb, all of Pomona, for petitioner. Edmund J. Thomas, Jr., T. Croezinger and Robert Ball, all of San Francisco, for respondent Industrial Accident Commission. Anthony C. Tomczak, Los Angeles, for respondent Colonial Ins. Co.

Review of proceedings of the Industrial Accident Commission. This is a companion case to Pierson v. Industrial Accident Commission, Cal.App., 220 P.2d 794.

The facts are generally the same as in the Pierson case. In his application for adjustment of claim Whitaker named ‘Livingston Greenwood’ as his employer. By stipulation this and the Pierson case were consolidated for hearing, the evidence in one case to be considered in the other in so far as it was material. The original finding of the commission in this case was that at the time of the injury Whitasker was employed by Baldoro Mines, Inc., a corporation. It found that the proceeding should be dismissed as to ‘Livingston Greenwood, doing business as Baldora Mines,’ and Colonial Insurance Company. An award was made in favor of Whitaker against Baldoro Mines, Inc. The proceeding was dismissed as to Livingston Greenwood, doing business as Baldora Mines, and Colonial. Petitioner Whitaker—applicant before the commission—seeks to annul the award.

Whitaker was one of the crew employed by Pierson at the direction of Greenwood. He was engaged in the preparatory work at the time he was injured December 20, 1947. During the entire time Whitaker worked at the mine his wages were paid by Greenwood personally. Pierson told Whitaker he (Whitaker) was working for Greenwood. He was not told that he was working for a corporation.

One of the issues in the controversy was whether petitioner was employed by Greenwood and Baldoro Mines, Inc., jointly. The commission did not find on or determine this issue.

For the reasons stated in the opinion in the Pierson case and because of the failure of the commission to find on the issue of joint employment, the award is annulled and the cause remanded to the commission for further proceedings upon the entire issue of employment.

VALLÉE, Justice.

SHINN, P. J., and WOOD, J., concur.