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PACIFIC EMPLOYERS' INS. CO. et al. v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA et al.a1
Petitioner Pacific Employers' Insurance Company, insurance carrier for Los Angeles Times at the time of the accident and injuries described herein, seeks to annul the award of the Industrial Accident Commission in favor of Ross E. Davenport under the Workmen's Compensation Act, and against the insurance carrier; said award having released and discharged the Los Angeles Times and its district manager, respondent Eugene Frederick Lewis.
There is no controversy herein in respect to the accident, injuries, or amount of the award. It is conceded by all parties that Davenport was an employee of Los Angeles Times and that at the time of injury was engaged in selling or offering for sale, directly to the public, newspapers delivered to him by the Times. To the same effect the commission found, and we are in entire accord, after examining the evidence, with the concession and such finding. The sole question left in controversy is: Had title to such newspapers delivered to the employee Davenport passed to him at the time he was so engaged in selling them?
The evidence without conflict shows that Davenport was employed to sell the Sunday editions of Los Angeles Times from 4 p. m. to midnight on Saturdays; that he was selected by the district manager of the Times, working in conjunction with its circulation manager, and his station and hours of work were designated by them; that to him were delivered the several editions of the Sunday Times, which he was either to return or pay for at 71/212 cents each, he to assume the risk of loss or theft thereof. In addition to the profit derived by him on resale of the papers, the Los Angeles Times paid him 50 cents for each Saturday, for which he gave his receipt as “pay.” It is clear from the evidence that Los Angeles Times, as seller, delivered to its employee Davenport, as buyer, newspapers to be sold to the public or returned to the seller.
In 1931 section 8 (a) of the Workmen's Compensation Act was amended (St. 1917, p. 835, § 8 (a), as amended by St. 1931, p. 2068) by adding to the list of employees excluded from the operation of the act “any person engaged in vending, selling, offering for sale, or delivering directly to the public, any newspaper, magazine or periodical where the title to such newspaper, magazine or periodical has passed to the person so engaged.” The word “person” used in the above clause clearly refers to “employees,” as the act in question does not purport to operate on any person except employees of an employer. At the same session of the Legislature there was passed the Uniform Sales Act (St. 1931, p. 2234), comprising title 1 of part 4, sections 1721 to 1800, inclusive, of the Civil Code. By section 1739 thereof (St. 1931, p. 2240) it is provided that unless a different intention appears, certain rules are to be followed for ascertaining the intention of the parties as to the time at which the property or title in the goods is to pass to the buyer. Among these rules is the following: “Rule 3. (1) When goods are delivered to the buyer ‘on sale or return,’ or on other terms indicating an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time.”
On this subject of “sale or return” in the Uniform Sales Act, the author of Mechem on Sales (section 677) says: “A contract of this nature * * * constitutes usually a present sale subject to be defeated by a condition subsequent. Until return, therefore, the title is in the vendee. He may sell the goods as his own and thus defeat the return; or they may be seized by his creditors, with the like effect. The risk usually is his also, as the risk follows the title.” In Williston on Sales (section 270), in discussing the distinction between sales “on approval” and “on trial” or “on satisfaction,” and “sale or return,” the author says: “The English Sale of Goods Act does not distinguish between these two kinds of bargains, though the draughtsman of the act suggests the possibility of the transaction being carried out in either way. * * * The English cases lean very strongly towards the view that the property does not pass until the buyer is bound. On principle, however, there seems no reason to suppose the parties should adopt one form of transaction rather than the other; both are common. Such is the doctrine of the American cases. The question is one of fact in every case whether the parties intend to make approval a condition without which the property shall not pass, or whether their intent is that the property shall pass at once with the right of return of the goods. * * * The use of the word ‘return’ itself ordinarily implies a previous transfer of the property.”
Under the evidence herein there appears no expression of intention of the parties in their agreement or arrangements as to the time at which the title in the papers was to pass to the newsboy. Under section 1739 of the Civil Code we must therefore be guided by rule 3 in determining such intention. The papers herein involved were delivered to the newsboy “on sale or return,” and therefore, under the rule quoted, the property or title passed to the latter on delivery to him, subject to being revested in the seller by returning the same or any number thereof to its district manager when he called for settlement of the account. The transaction constituted a present sale, subject to being defeated by a condition subsequent. The fact of assumption of all loss or risk by the newsboy supports this conclusion, as the risk follows the title; and this fact furnishes additional proof of intention to vest title on delivery.
From the foregoing it follows that the newsboy Davenport was an employee who was excluded from the operation of the Workmen's Compensation Act by the terms of section 8 (a) as amended in 1931.
The award is annulled.
WILLIS, Justice pro tem.
We concur: STEPHENS, P. J.; CRAIL, J.
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Docket No: Civ. 9787.
Decided: December 06, 1934
Court: District Court of Appeal, Second District, Division 2, California.
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