INDUSTRIAL INDEMNITY EXCHANGE v. INDUSTRIAL ACCIDENT COMMISSION ET AL (1944)

Petitioner, the Workmen's Compensation Insurance carrier for J. S. Metzger and Son, seeks by this proceeding to annul an award made by respondent Industrial Accident Commission in favor of respondent John Campellone and against petitioner.

The Commission found that said John Campellone, while employed as a truck driver, on November 29, 1942, at Palm Springs, California, by respondent Gagnon Company, Inc., a corporation, as general employer, and by J. S. Metzger and Son, a corporation, as special employer, sustained injury arising out of and occurring in the course of his employment. The Commission also found that on the date of the injury, The Gagnon Company was uninsured against Workmen's Compensation liability.

An award of compensation was made by the Commission in favor of John Campellone, the injured employee, against the general employer and petitioner herein, the insurance carrier for the special employer, jointly and severally. No question is here involved as to the award against the general employer, and the legality of the award against petitioner herein, as insurance carrier for the special employer, is the sole issue presented in this proceeding.

The transcript of the testimony which was given before the referee of the respondent Commission discloses that the following facts form the evidentiary basis for the award which is here sought to be annulled:

J. S. Metzger and Son, Inc., was the general contractor on a construction job at Indio, California. The Gagnon Company owned a truck. Ernest E. Gagnon, president of the corporation, ascertained from respondent John A. Fox, in a telephone conversation, that hauling work was available in Palm Springs. Respondent Fox was engaged in an independent calling as a truck broker at the time of the transaction here in question, and possessed a truck broker's license. In addition to his services for J. S. Metzger and Son, Fox was supplying trucks for two other jobs in the vicinity at the same time. We feel that it may be fairly stated from the record that J. S . Metzger and Son orally agreed with respondent Fox to obtain trucks for the Metzger job and for this service the latter agreed to pay Fox a percentage on every ton hauled, as an override. There can be no question but what the injured employee, John Campellone, was hired by The Gagnon Company to drive and to repair the truck which was owned and furnished by Gagnon to Fox. For his services as such driver Campellone was to receive $1 per hour for the time he worked. At the instigation of the president of The Gagnon Company, Campellone reported to Fox about November 24, 1942, and was informed by the latter that there were three jobs running, one of which was the construction job upon which Metzger and Son, Inc., was the general contractor. Fox gave Campellone his choice to work upon any one of them. The latter chose to drive The Gagnon truck in connection with the Metzger job. At the hearing before respondent Commission, the injured employee, himself, testified that he never received orders from any one connected with or representing J. S. Metzger and Son; that upon only one occasion did an employee of the latter offer any suggestion or direction and that upon that occasion such employee merely stated that no more sand was needed on the Metzger job, but that rock was. The evidence is without contradiction that the injured employee was hired and paid by The Gagnon Company to drive the truck and also to make any necessary repairs thereon. All expenses in the operation of the truck were paid by The Gagnon Company. The employee was injured November 29, 1942. At the time of his injury he was on the public highway repairing the truck driven by him as an employee of The Gagnon Company. He was injured when the hoist gave way and the truck fell onto him. At the time of his injury he was not hauling a load on the Metzger job, and in fact there was no load in the truck. As we view the evidence the injured employee was repairing the truck in compliance with directions and instructions given him by his employer, requiring that he keep the truck in repair. It is noteworthy that the application for adjustment of claim in this proceeding was not filed by the injured employee, but by the president of The Gagnon Company, and its filing was without the consent of the injured employee and against his wishes.

While petitioner challenges the legality of the award made against it upon several grounds, we shall give consideration only to the contention that the record is barren of any substantial evidence to support the finding of respondent Commission that John Campellone was employed by petitioner's assured, J. S. Metzger and Son, as a special employer, and that he sustained injury arising out of and in the course of such employment. This we do because we are persuaded that petitioner's claim in this regard is well taken and determinative of this proceeding.

Before liability can attach to one as a special employer, it is necessary that at the time of the accident, the injured employee must have been subject to the direction and control of such special employer. The status of special employer arises from this right to control and direct the activities of the employee. Independence Indemnity Co. v. Industrial Accident Commission, 203 Cal. 51, 55, 262 P. 757. We fail to find in the record any evidence, substantial or otherwise, that any representative of J. S. Metzger and Son had the right to direct the employee in the work he was doing, either in hauling sand and gravel or in repairing the truck. And certainly there is not a scintilla of evidence that petitioner's assured could have discharged the injured employee, because the latter was employed by, paid by, and subject to the direction and control of The Gagnon Company. So far as we can discern from the record, the only directions given to the truck driver on the Metzger job by the latter or its representatives were as to where the loads were to be hauled. In weighing the control allegedly exercised care must be taken to distinguish between authoritative control and mere suggestion as to detail. To constitute the status of special employer there must be a showing that there was exercise of the right of directing the employee by the alleged special employer as to the manner and method of doing the work, based upon the latter's right to control not only the work to be done but the person engaged in the doing of the work. As was said in Western Indemnity Company v. Pillsbury 172 Cal. 807, 811, 159 P. 721, 723: “The test of ‘control,’ however, means ‘complete control.’ * * * ‘It is well settled that, where one person is performing work in which another is beneficially interested, the latter may exercise over the former a certain measure of control for a definite and restricted purpose, without incurring the responsibilities, or acquiring the immunities, of a master, with respect to the person controlled.’ ” (Emphasis added.) And the case of Stacey Brothers Gas Construction Co. v. Industrial Accident Commission, 197 Cal. 164, 169, 239 P. 1072, 1074, is authority for the statement that in order “to establish the legal relation of special employer and special employee it must appear that either by the terms of the contract or during the course of its performance the employee of the alleged independent contractor came under the control and direction of the other party to the contract, and suffered injury as the result of such direction and control”. It seems clear to us from the record in this case that the relation between J. S. Metzger and Son, Inc., and The Gagnon Company was that of independent contractors, Sec. 3353, Labor Code, St.1937, p. 267; and it appears equally clear therefore that the relationship between Metzger and Son, Inc., and the injured employee was that of general contractor and the employee of an independent sub–contractor. The record herein shows that J. S. Metzger and Son was not interested in the slightest degree in the means by which the truck hauling should be done by The Gagnon Company, or in the details of its accomplishment, but was interested only in the final result which was to be attained. And the result was the delivery of sand and rock upon the job, in the construction of which Metzger and Son, Inc., was the general contractor. In the case of Winther v. Industrial Accident Commission, 16 Cal.App.2d 131, 60 P.2d 342, the alleged employer therein exercised considerably more control over the injured employee than is shown in the instant proceeding, yet it was held under the above stated rules that the relationship of employer and employee did not exist, and an award made by the Commission was annulled.

The only semblance of any “control” exercised by Metzger and Son over the injured employee is contained in the testimony of respondent Fox, who testified that he directed the employee John Campellone where to take the truck on the job “on the instructions of the superintendent of Metzger Company”, and that similar instructions were given to the truck driver by Metzger and Sons superintendent who, according to the witness Fox, said “take this truck––take this load to the Whittier Ranch, where he previously had instructions to dump it at the Bell Ranch. And I heard him say ‘Go to Cabazon, get the load, and dump it here’ ”. But this testimony falls short of establishing that “complete control” which is essential to fasten liability upon J. S. Metzger and Son as a special employer. It in no sense “reaches into the details of performance and reserves to the employer the right to direct the manner in which these details are to be carried out”. Winther v. Industrial Accident Commission, supra, at page 136, 60 P.2d at page 345. These “directions” indicate only an interest upon the part of Metzger and Son in the result to be accomplished, and indicate no interest in, or right to direct, the manner and method of doing the work in question.

As we view the evidence in this case, it admits of but one conclusion, and that is that petitioner's assured was the general contractor on a job; respondent John A. Fox was an independent contractor who arranged for trucks with drivers to haul loads on the job, and for which he was to be paid an override on each load so hauled; while the injured employee, John Campellone, was hired by The Gagnon Company, paid by it, and sustained his injury while repairing the truck in conformity with directions given him by his employer, The Gagnon Company, which corporation alone employed him, could alone discharge him, and which alone paid him for his services. Therefore, the conclusion is inescapable that all of the evidence bearing upon the relationship which existed between J. S. Metzger and Son and the injured employee is insufficient to sustain the finding of respondent Commission that petitioner's assured was the special employer of John Campellone, the injured employee.

The foregoing conclusion at which we have arrived renders it unnecessary to consider or decide other questions raised in this proceeding.

The award is annulled.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.