*1 is not only when there will issue writ of mandamus ordinary course remedy in the speedy adequate plain, 111, Diego Andrews, Cal. (City v. law. San cor reviewed and 726].) judicial . action can be Where P. ordinarily by of mandamus will appeal, rected a writ Court, Cal.App.2d 263, (Snyder Superior lie. v.

The writ is denied.

Thompson, Peek, J., J., and concurred. 1945, February 15, petition rehearing A for a was denied petitioner’s hearing application Supreme 'and for a Court was denied March 1945. No. 7115. Third Dist Jan.

[Civ. 1945.] . FREEDMAN, Petitioner, M. J. INDUSTRIAL ACCI COMMISSION, al., DENT Respondents. JOHN ROSS et *2 Arthur R. Friedman for Petitioner.

Everett Jr., Respondents. A. and Dan Murphy, Corten ADAMS, proceeding P. J. the Industrial Accident In. Ross, Commission applicant, while finding made a that “John picker, September 22, 1943, as a near grape Modesto, Hasson, by Ed California, M. J. Freedman and then and there in mutual engaged a to their advantage profit, harvesting grapes on the to wit: the of ranch by of and owned M. J. sustained defendant injury occurring arising in of his em- the course of and out ployment and held Hasson and were Freedman jointly and severally liable for an award in of John favor Ross. sought by contending Freedman has a review this court that the commission in finding erred that he and were engaged in joint enterprise. He the also contends evidence before was not an the commission shows that Ross petitioner of employee Hasson, acting anwas of independent as an contractor, petitioner is not liable for the award made to Ross. commission,

As we construe the the proposition award is based the and Freed engaged the enterprise, and that of both Hasson flows from this fact. Our first inquiry is, then, testimony whether the before commission support sufficient to that Hasson and Freedman an enterprise or adventure. 681,

In 30 Jurisprudence 7, American section relation of adventurers is said to where or more be created two persons money, property combine their or time in the conduct particular of trade, particular some line of for some busi- or deal, agreeing jointly, ness in proportion to share to the capital contributed, profits losses, assuming in the and' the circumstances do not establish a technical partnership. 682, 11) Also (p. proprietary that a interest and a §

631 right subject matter the enter- mutual control over the prise is essential property engaged or over therein joint adventure. 613],

In 161 P.2d Cagle, Cal.App.2d Beck 46 v. [115 joint enterprise parties court held that constitute community purposes must have a of interest in the move undertaking equal authority to direct the therewith; ments and conduct of each other in connection any, a close be losses, must share in the and there must In relationship and even between them. Stoddard fiduciary 800], it Goldenberg, Cal.App.2d 319, v. 324 P.2d [119 said is an indispensable feature of a venture agreement jointly in parties to it to share (Also Co., Picacho Min. losses. see Enos v. Gold App.2d 765, Quinn Recreation v. [133 Park 144], the court Association, Cal.2d adven said that order to establish the existence community interest, ture must and a shar proof ing profits. (Citing 761; Dempsey-Kearns 14 Cal.Jur. Enterprises Theatrical Pantages, Cal.App. etc. *3 Sakiota,

P. In United Association v. Farmers App.2d 559, 770], relation it is stated that the ship joint in partners is to that adventurers similar that of in parties essential element is the share the that Spier and Lang, losses. Cal.2d 715 [53 man 138], and participation it is said that in the control agement a adven the business one of indicia ; parties ture between the partnership that the usual test of a a The to intent to become adventure their largely by prin the relation of adventurers is controlled ciples ad applicable partnerships, or rules to usually single ventures are confined to a transaction. as to amounts Reports

Also see American Law what adventure. n in proceeding, is contained the The evidence in the which oper- Freedman was respondents, return filed shows that desiring growing ating vineyard, and, grapes to harvest the a portion asked approached 30-acre Hasson and same, a gang pickers. replied him a Hasson that if he could secure pay. The latter he and what Freedman would could asked agreed grapes picked, and to pay per for the to cents box hiring pay for his the per ton to Hasson trouble $1.00 Hasson pickers including hired the latter gang. Ross. The working had been but three hours he was the struck when eye by vine, sustaining a injury thus the for award was injury made. Ross testified that at the time of he called the Hasson; that, that Freedman on Hasson premises the and fold (Ross) Freedman him to take and that Freed- to doctor bill; him took to a doctor at the that paid Turlock Hasson him, get per had hired and told would 13 cents he him box, that paid him for three hours’ $5.25 the work had he done. When asked if Freedman came around to see picked—whether how he picked many he leaves— too he time, stated him that he saw one Freedman say anything him. to He also testified that Hasson .did had taken him place out to Freedman’s and had him shown pick on; row to that at the time he to work did started he. not see Freedman. get gang testified that Freedman asked him to pick men grapes, box, to pay per and said he would 13 cents pay per gang; him $1.00 ton for hire his trouble to among that he hired men, them, Ross them' and told to work Freedman; vineyard that when he arrived at the do, with the men Freedman showed him him to showed what the boxes;.that brought when he Ross out he did not take him Freedman .that told to check the boxes him and “look at men grapes foreman,, clean look job’’; after gave money Freedman him for the total picked week; getting number of that after boxes winery tab gave from the $1.00 him for his Freedman- a.check per ton, day averaged per $12 $15 that-he $14 per ton; quit $1.00 men struck and wanted give and Freedman money; told them more that the men agreed pay cents; went to Freedman who that when to. got Ross him, hurt and came to he and asked called Freedman do, what he should took Ross to doctor. When asked if he took replied out insurance he *4 not contractor, however, testified, but a foreman. He -that at gang ranch; time he .same had ‘a another that he put then place Freedman’s, another man in-his foreman as at paid and himself, collecting such man after from go up continued to to Freedman’s or hours two three (cid:127)that.he week, Saturdays got and .on he the book from had put the,.book place, and turned his Freedman. grape looking for was he that when Freedman testified one; had a man who to him pointed out was crew Hasson per 13 cents wanted Hasson Hasson; that he talked to that; he.agreed to himself, a ton for plus and $1.00 box talk ranch; he did brought the crew to run (Hasson) was Hasson he had told crew, as he to the- he any complaints had (Freedman) that when he them and through field occasion- Hasson; that he walked tell would all being filled and whether were ally how the boxes to find was Boss vines; that when being picked off grapes were Boss he take him asked if would called hurt Hasson picking Hasson for moneys paid to doctor; that all plus 13 cents a box than paid never more grapes; that he came employees Hasson’s ton, none of per $1.00 him; working bim money they were while to ask for crew, wanted job finished his brother his that when a crew and found they place brother’s went to the but when strike, and getting they went on more across the road payment of authorized the telephoned his brother who they were work- per box; but that was not while an extra cent left he still himself; that after Hasson ing for Freedman get every the checks week. continued to Freed- foregoing that Hasson and obvious from the It seems import adventure within the man were not such a above cited decisions as to what constitutes of the object community interest in the relationship; no undertaking, govern the conduct of equality no agreement share respect thereto, with and no other an appear, and there is no evidence of inten- losses they part of either that were to become tion on the is basis for It therefore follows that there no joint liability injury by Boss; for the incurred must, premised individually liable, both are ground both upon the that Boss was either employers, an em- Freedman as individual ployee of one or the other. Bespondents.in their answer in .effect admit that this

n so, say evidence to show that that there sufficient Boss, individually liable as the award, any “if in the there was error Commission’s holding (Hasson) jointly it was in the other defendant ’’ They argue him. then that since Hasson liable with *5 has not .contested this af feature of the award it should he against firmed as argument Freedman. But it defeats self, for the commission has not was the found that Ross employee Freedman, but that he was an partnership, joint adventureship may if it be so called. Presumably, jointly it found them as well as liable because of its engaged joint conclusion that adventure, liability such flowed several from that relationship; say and this court cannot that had the commission not found that there was a adventure it would have found that Freedman rather than Hasson was employer. There is evidence in the record from which might commission have found that Hasson was an inde pendent contractor, and-that, such, as he and not employer was the (See of Ross. Winther v. Industrial Acc. Com., 16 Cal.App.2d 131 342]; Compensation State Insurance Fund v. Industrial Com., Cal.App.2d .Acc. any event, At employer whichever was the question is a peculiarly of fact province within the commission, and it is not one for this court to determine from the evidence adduced. finding

The based, wit, the award was liability of a partnership in joint adventure, the nature of a being support, without the award falls with it. The award is therefore annulled and the cause is sent back to the commis- sion with instructions to find from the already pre- evidence sented evidence, any, may further presented as be it, to who was the actual of Ross.

Peek, J., concurred.

THOMPSON, J. majority opinion appears I dissent. The to me contrary to be to law. It apply fails to the uniform separate rule that a liability against several exists employer regardless of whether he is coemployer or a mem- ber of a enterprise. The adventurers is the same as that of finding The that Freedman and imma- therefore may terial disregarded surplusage. Even may evidence support finding adven- ture, it seems to me to be neither necessary proper nor reverse the award.

The commission found that M. J. Freedman and Ed workman, John Ross. It also rendered sev ample eral employers. award both There is evidence support finding against Freedman. The Compensation liberally the Workmen’s con Act should be injured Code, (Lab. strued the benefit of an workman. 3202; 230.) Cal.Jur. 229 and The § *6 §§ theory Freedman and Hasson Ross refutes the independent was that he contractor. He testified boss,” merely acting was not “the but that he was as “fore ’’man. That is accordance with the record as whole which indicates that Hasson secured the workmen and acted fore agent man Freedman, as the of and not otherwise. Hasson authority had no workmen, to fire wages, nor to fix their nor to direct enterprise crop and control the picking of grapes. of When wages the workmen asked for an increase of Hasson sent them saying to Freedman he was not the boss and that he had no authority pay. to raise their When Ross injured was Freedman, told responsibility] “It [the up you you want to take to a doctor.” Freed man by taking assumed that injured physician for treatment. petitioner, The burden was on the Freedman, prove independent that Hasson was an con tractor. He failed adduced, to do so. When the evidence together with the reasonable inferences to be drawn there from, indicate that the owner aof business has the discharge workmen, fix wages manage their control their operations, may employer re deemed be the gardless of the manner in they are paid or the method (Riskin their selection. Com., v. Industrial Acc. 2d 248 16].) P.2d Where is a [144 substantial conflict regarding evidence relationship employer and em ployee, may of the commission not be disturbed. (S. Com., A. Gerrard Co. v. Industrial Acc. Cal.2d 377].) P.2d [110

Since Freedman was found the commission to be an employer Ross, separate and a against award was rendered him, it immaterial whether Freedman was the sole merely coemployer of the workman. either event he would be liable (Pacific for the full amount of the award. Employers Ins. Com., Co. v. Industrial Acc. 58 Cal.App.2d 262, 269 633]; P.2d Standard Accident Ins. In- Co. v. [136 Com.,

dustrial 123 Cal.App. Acc. Even though joint enterprise contemplated by employers, it,failed reason, may for some each member nevertheless became liable for the full of the amount award. (1 Campbell Compensation, 406, § 452; on p. Workmen’s New York Indemnity Co. v. Industrial Acc. Com., Cal. App. 37, .160].) A and several award against coemployers, whether are members of a may or not be binding employer, on one even though it is party. (Standard void as to the other Accident Ins. Com., Co. v. Industrial supra.) Acc. In the case last held, cited it was certiorari, petitioner that the liable for the full award, notwithstanding amount of the the fact judgment against coemployer, the other the William Powell Company, may have been void because the commis jurisdiction sion lacked company last named for defect of substituted process. service of

It follows that since the commission found that both Freed- man and Hasson employers Boss, and rendered a and several award them, Freedman would be liable for the full award, amount of the even the. may award be void as to Hasson. petitioner Hasson is not a *7 proceeding. appeal. He failed to For foregoing reasons I am convinced the award M. J. Freedman should be affirmed.

Bespondents' petition hearing by for a Supreme Court denied March 1945. No. 12727. First Dist., One. [Civ. . Div. Jan. 1945.] MAUD, LOUISE C. Plaintiff Appellant, v. JOSEPH FISKE al., CATHERWOOD et Appel Defendants and ; lants ETHEL al., Respondents. H. CRANE et