216 P. 578 | Cal. | 1923
Lead Opinion
This is a proceeding in certiorari to review an award of compensation for the death of one Guy V. Edwards, who was killed on November 3, 1921, by the overturning of a motor-truck which he was driving while in the course of his occupation. The only question presented upon this review is whether decedent was an employee of the petitioner Haydis, or whether he was an independent contractor.
Haydis carried on the business of transporting freight by motor-trucks between Los Angeles and San Diego. In September, 1921, decedent bought a truck and on October 22, 1921, entered into a written contract with Haydis to carry freight for him between San Diego and Los Angeles. By its terms Haydis, the party of the first part, "hereby engages and employs the exclusive services of the party of the second part [decedent] together with and to operate and run" the motor-truck and trailer therein described for the purpose of transporting freight for the party of the first part for a specified period of fourteen months. Decedent agreed to furnish the truck and trailer, keep them in repair, pay all operating expenses, including the driving, and to make one trip between Los Angeles and San Diego, or between San Diego and Los Angeles, each twenty-four hours, unless detained by breakdowns, wrecks, or other causes that could not reasonably be guarded against. He was to receive not less than forty cents per hundred pounds for freight carried, Haydis guaranteeing him an average of not less than $700 a month. At the end of each month a balance between the receipts and the guaranteed compensation was to be struck. Haydis was to provide the loads of freight shipped, to furnish warehouses and assume all responsibility *406 of the billing and collecting of charges, for which he was to be paid by decedent fifteen per cent of his gross receipts. At the option of decedent (which he exercised) Haydis was to assume and perform all services in connection with the loading, unloading, distributing, and assembling of the loads, and was to have the use of the truck for that purpose, and was to be paid $50 per month by decedent for those services. It was provided that when "trip prices" were received, the weight of the load should have no bearing on the amount decedent was to receive for it, that payment for the "services rendered herein" by decedent should be made between the 1st and 10th of each month, and that Haydis should furnish decedent with duplicate trip sheets showing the amount of all shipments. The contract was transferable to a third party, subject to the approval of Haydis, and provided that it was "understood at this time that there are no other agreements, either written or verbal, between the parties hereto." It was agreed upon the hearing that the services rendered were governed exclusively by the contract, and it appeared in evidence that the decedent had operated exclusively thereunder from the time of the making of the contract to the time of his death, and that he had not been engaged in the trucking business except during the few weeks intervening between the purchase of this truck and the making of the contract.
The distinction between an employee and an independent contractor under the Workmen's Compensation Act has been considered by this court on numerous occasions. [1] It is settled that the accepted interpretation of those terms has not been altered by the addition of section 21, article XX, of the constitution, nor by the amendment of that section in 1918. (Pacific G. E. Co. v. Industrial Acc. Com.,
In determining in any given case whether a person was an employee or an independent contractor there are usually present various circumstances which are persuasive to one conclusion, and other circumstances persuasive to the opposite conclusion. But an analysis of the eases makes it plain that the determinative factor is usually found in the solution of the question: Who has the power of control, not as to the result of the work only, but as to the means and method by which such result is accomplished? In Luckie v. Diamond CoalCo.,
"The accepted doctrine is that where the essential object of the employment is the performance of work, the relation of master and servant does not exist unless the employer retains the right to direct the mode and manner in which the job shall be done; or, in other words, not only what shall be done, but how it shall be done. (Labatt on Master and Servant, sec. 64;Western Indemnity Co. v. Pillsbury,
Respondents contend that the instant case comes within the rules applied in Eng-Skell Co. v. Industrial Acc.Com.,
The circumstance that under the contract decedent was to render nondelegable personal services may be persuasive, but it is in no sense conclusive or determinative. Contracts for the rendition of nondelegable personal services are of common occurrence which do not constitute the contractor an employee. For example, the ordinary contracts between attorney and client. The same may be said of the use of the phrase "engages and employs."
In Shearman and Redfield on Negligence it is said: "The true test of a 'contractor' would seem to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to theresult of his work and not as to the means by which it is accomplished" (6th ed., sec. 164). Respondents emphasize the phrase "in the course of an independent occupation" and argue that the decedent was not pursuing an independent occupation because he was not doing hauling for anyone else and was not permitted so to do under the provisions of his contract for the term thereof. This is a non sequitur. The question whether or not one is pursuing an independent occupation does not depend upon whether he is serving one person or many persons, but whether in the pursuit of his occupation he is acting upon his own behalf or as the servant of another. This is pointed out by the authors last quoted from in the same section: "If he never serves more than one person there is usually a presumption that he has no independent occupation; but this presumption is not conclusive. A single large railroad company, for example, *411 might find work enough for a contractor to occupy his whole lifetime, yet leave him to work in perfect independence, accepting the results of his labor without ever interfering with his choice of the mode and instruments of working. On the other hand, one may have many employers within a short space of time, yet be a mere servant to each of them in turn. . . . The one indispensable element of his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it." Decedent had been working with this truck a little over a month before making this contract.
The question of the burden of proof is wholly immaterial herein for the reason that the facts are all in evidence and the evidence is without conflict. It was stipulated at the hearing that the services rendered were governed exclusively by the written contract which is in evidence. The question whether the decedent was an employee or an independent contractor is thus a pure question of law to be resolved from the terms of the contract itself, considered in the light of the situation of the parties. But if we go further and consider what was done by them in carrying it out, there is no evidence that Haydis ever exercised any control over the truck while it was being operated by decedent. Mrs. Edwards testified that it was understood that decedent should not carry anyone else upon the truck. But she immediately explained this statement by saying: "I mean — as I understood it no insurance would be good in any way if there was anyone outside, or anyone else driving." There is no evidence that Haydis ever demanded, or even suggested, that decedent should not carry anyone else upon the truck. Neither is there any evidence that Haydis ever made any decedent or request or suggestion with respect to the mode of operation of the truck by decedent.
By the contract herein Haydis also agreed to render services in providing the loads, freight, and shipping, in the billing and collecting of charges, and in the loading, unloading, distributing, and assembling of the loads, for which he was to receive a specified recompense from decedent. It might, therefore, be argued with almost equal justice that under this contract Haydis was the employee and decedent was the employer. [3] But taking the contract herein by its four corners, and considering it in the light of the situation *412 of the parties, and in the light of what was done by each of them in its performance, our conclusion is that the decedent was "under the control of his principal as to the result of his work only, and not as to the means by which such result is accomplished," and was, therefore, an independent contractor.
The award is annulled.
Kerrigan, J., Waste, J., and Wilbur, C. J., concurred.
Dissenting Opinion
Upon the hearing before the Industrial Accident Commission, respondent Mrs. Edwards, decedent's widow, testified that from the time he made the contract decedent operated exclusively under it; that he did not solicit or convey goods of any sort from any terminal other than that of Haydis and the Truck Owners and Shippers, Inc.; that the money for the freight decedent hauled was collected through Haydis' office and that from time to time decedent was paid money by Haydis; that decedent did not have anyone drive the truck for him after he entered into the agreement; that he drove to Los Angeles and back alone; that she did not remember of any representative of Haydis ever going with him; that "It was understood that he was not to carry anyone else, no one else was to go with him. I mean — as I understood it no insurance would be good in any way if there was anyone outside, or anyone else driving. That is one reason he never took me to Los Angeles"; that before decedent bought the truck he was not in the trucking business, but worked for a dairy. It was agreed upon the hearing that the services rendered were governed exclusively by the contract.
Petitioners emphasize the circumstances that decedent owned his own truck, took care of it himself, and paid for its upkeep; that Haydis exercised no control over the manner or method of hauling the freight; that decedent traveled alone and was his own master in operating the truck. Three cases are cited and especially relied upon as determining that under the facts shown decedent was an independent contractor. InWestern Indemnity Co. v. Pillsbury,
In Flickenger v. Industrial Acc. Com.,
As stated in the main opinion, respondents contend the case presents a closer analogy to Eng-Skell Co. v.Industrial Acc. Com.,
In the two latter cases the injured party was jointly engaged by a creamery and a newspaper, combining the work of going to a ranch in the country after cream and delivering papers along the way. The court held in both instances he was an employee, the control over his movements being found to exist potentially in the facts that in each case his duties were required to be finished by a certain time and that each hirer had the right to discharge him at any time. It was further held that he did not become an independent contractor because he owned and paid the upkeep of the motorcycle he used in the performance of his duties, nor because he incidentally carried packages for persons along his route, which in no way interfered with his regular work and was entirely subordinate to it.
This case is distinguishable in certain respects from the cases cited by petitioners. In each of those cases the injured party was engaged in an independent hauling business, and the work he was doing when injured was done in the course of that occupation. Although all his time might temporarily be devoted to one job, he was allowed to engage in other enterprises, and his service was not to be rendered exclusively to one party. InWestern Indemnity Co. v. Pillsbury, supra, the agreement was not even one for personal services. Here decedent conducted no general trucking business. He secured his truck in September and on the following October 2d entered into the contract, *415 having before that time worked for a dairy. Under the contract he was to render nondelegable personal services exclusively to Haydis, being thus precluded from following an independent calling. The time during which the contract should extend was limited and a definite sum was guaranteed decedent, which was equivalent to no more than a promise of wages. Except for the provision that Haydis was to perform certain duties, decedent was required to attend to all the incidents of the transportation of the goods. In these particulars this case is almost identical with Eng-Skell Co. v. IndustrialAcc. Com., supra.
The fact that the parties provided for the contingency of an assignment of the contract by decedent might be claimed to indicate that they did not intend to establish the relation of employer and employee. But when the nature of the provision is considered, it is apparent it does not have that effect, for it is merely an agreement for an assignment with the consent of the hirer, such as would be implied by law even in the absence of any clause to that effect. It is well settled that when an agent assigns a contract without the consent of the principal the assignee takes merely an opportunity to offer himself to the principal as a substitute for the assignor (Boehm
v. Spreckels,
The question of Haydis' control over decedent's conduct of the work remains to be considered. In Press PublishingCo. v. Industrial Acc. Com., supra, it was declared: "In the absence of any express terms affirming or negating the power of control and direction, its existence must be determined from the reasonable inferences to be drawn from all the circumstances surrounding and attending the making and execution of the contract considered in conjunction with the nature of the contract and the duties ordinarily to be performed thereunder." As already pointed out, the employers in that case were held to have control of the employee because the work was required to be finished by a definite time and because they retained the power to discharge *416
him at any time. In Eng-Skell Co. v. IndustrialAcc. Com., supra, it was found the employer did actually control the movements of the employee. In this case Haydis engaged and employed decedent's services exclusively. The word "employ" has a definite legal meaning, and one of the elements involved in an employment is the employer's control over the employee. "While it is not "the name parties may give to their contract which determines its character" (Mebius Drescher Co. v. Mills,
As the contract in question contained no express reference to the subject of control, it might well be held that by the very use of the term "employs" it was intended Haydis should have control over the movements of decedent and that decedent was in fact to be his employee. Such a holding would settle the entire matter. But I am of the opinion it also appears from other facts that sufficient control was reserved to Haydis to constitute him an employer by the contract. Decedent was required to make a trip one way each twenty-four hours. He could not substitute another driver or another truck and thus could not use his own discretion as to the time or means of transportation. He had no discretion concerning the loading of the truck or the shipping; Haydis was to provide for this without regard to decedent. It was also provided that trip prices might be received, necessarily at Haydis' discretion, for he was to furnish the loads, and that in such an event the weight of the load should not affect the amount received by decedent.
The only matters over which Haydis apparently did not retain express control were as to what roads decedent should travel upon and in what; manner he should perform the acts required in operating the truck. What directions would a driver need more than were given to this one? That some control was actually exercised over the truck while it was being operated by decedent is shown by the testimony of respondent, Mrs. Edwards, that because no insurance would be good if anyone rode with decedent, it was understood he should not carry anyone else upon the *417 truck. The control actually having been exercised, it is evident it was vested in Haydis, and the other elements of an employment being present, I am satisfied the finding that decedent was his employee is supported by the evidence and that the award should be affirmed.
Lennon, J., concurred.
Dissenting Opinion
I agree with the conclusion reached by the minority opinion. The question whether decedent, Edwards, was an employee of petitioner, Haydis, or an independent contractor, as held by the majority opinion, is a question not free from doubt. Elements tending to constitute either relationship are somewhat intermingled in the transaction. The burden of proof rested upon petitioners to prove affirmatively that decedent was an independent contractor. Section 19 (d), Workmen's Compensation, Insurance and Safety Act, provides as follows:
"The burden of proof lies upon the party holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof shall rest upon the employer to establish them:
"(1) That an injured person claiming to be an employee is an independent contractor or otherwise excluded from the protection of this act, where there is proof that such injured person was at the time of his injury actually performing service for the alleged employer."
There being room for substantial doubt as to whether petitioners have sufficiently overcome the burden cast upon them by a showing that decedent was an independent contractor within the purview and meaning of the Workmen's Compensation, Insurance and Safety Act the award, in my judgment, should be affirmed.
Rehearing denied.
*418Wilbur, C. J., Lawlor, J., and Lennon, J., dissenting.