139 Cal. App. 362 | Cal. Ct. App. | 1934
—An award by respondent commission for injury sustained by an owner and operator of a truck and against certain contractors and their insurance carrier is presented for review by said carrier. It is undisputed that the employee received injury while hauling with his own conveyance material for highway construction at Mountain View, and that said injury caused his demise; that he and other truckmen had been employed elsewhere in hauling materials for road construction by a partnership known as Nollenberger and Knapp; that the latter were using their own trucks and those so employed in hauling cement, sand and rock, commonly termed “batching”, under an agreement with a general contracting firm known as Basich Brothers at the rate of $2'.25 per hour per truck; that upon removal to Mountain View the trucks were occupied in “batching” part of the time and when not so engaged were permitted to carry dirt for building “shoulders”, etc., on said highway. An award for dependents of said deceased was granted, based upon findings that decedent, while employed as a truck driver by defendant Basich Brothers, sustained injury1 arising out- of and occurring in the course of said employment, and that defendants Nollenberger arid Knapp were not the employers at the time of said injury. It is contended in this proceeding that Basich Brothers were not the employers at the time of the injury in question, that they did not have the power to hire or discharge truck owners and employees and that said decedent was at the time of injury an independent contractor. We think the objections resolve themselves into a test as to the sufficiency of the evidence upon which such findings and conclusions were founded.
In the review of proceedings upon application of the party aggrieved for final determination as to the suffi- • ciency of the evidence to sustain an award, the findings of respondent commission will be disturbed only when it becomes apparent that the triers of fact, with the witnesses before them, arrived at their decision in the absence of substantial evidence, or so in disregard of convincing evidence to the contrary as to exceed their jurisdiction. (Bissinger & Co. v. Industrial Acc. Com., 105 Cal. App. 441 [287 Pac. 540]; Carlson v. Industrial Acc. Com., 213 Cal. 287 [2 Pac. (2d) 540].) The record herein does not permit of such a conclusion. And further, Chapman v. Edwards, 133 Cal. App. 72 [24 Pac. (2d) 211], so completely answers the second question of the petitioner as to be controlling here. It was there held upon an abundance of authority: “Perhaps no single circumstance is more conclusive to show the relationship of an employee than the right of the employer to end the service whenever he sees fit to do so. (Press Publishing Co. v. Industrial Acc. Com., 190 Cal. 114 [210 Pac. 820].) The real test by which to determine whether a person is acting as the servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person’s orders and control and was liable to be discharged for disobedience or misconduct. . . . Other factors which may be considered are the hours of labor, terms of compensation, place where work is done and manner and nature of work to be performed.” In each of these particulars the record discloses evidence which may have and doubtless did compel the rendition of said award, and it cannot be held as a matter of law an excess of jurisdiction to accept it as true even were there evidence directly at variance therewith.
The award is affirmed.