139 Cal. App. 632 | Cal. Ct. App. | 1934
The pertinent facts upon which a decision by this court depends are substantially' that Volunteers of America is a religious and charitable corporation having all the powers of a natural person “to do any and all things which a natural person might do necessary or desirable for the general purpose for which the corporation is organized”; that in the performance of its several activities Volunteers of America sold for cash to the public certain “rehabilitated” shoes and other articles; besides which, frequently it freely bestowed charity, sometimes in cash but more generally in merchandise, upon assumedly worthy individuals. However, ordinarily when the applicant was able to work he was required to do so in payment for the articles of clothing or merchandise for which he made
The first point presented by the petitioner for the consideration of this court relates to the question whether, within the meaning and intent of the provisions of the Workmen’s Compensation Act, at the time when the injury was suffered by Whalen he was an employee of Volunteers of America. In that connection, at the outset it should be noted that on the date when the accident happened which resulted in the injuries to Whalen, the Workmen’s Compensation Act did not contain the provision that is now included therein, by the terms of which “any person or persons who perform services in return for aid or sustenance only, received from any religious, charitable or relief organization”, apparently are excluded from the benefits which under the provisions of the act accrue to employees in general. (Stats. 1933, p. 2613.) To the contrary, by no provision of the act then in force was any religious, philanthropic or eleemosynary organization or corporation specifically exempted from the binding force of the statute as it affected either corporations or individuals. Indeed, in terms, the act defines an employer as “ ... all public
Regarding the question of the existence of such a relationship, in view of the important fact that the employer was a religious and charitable corporation and the employee was an applicant for material assistance, in the ease of Gilroy
With relation to whether the work that the applicant herein performed for Volunteers of America was “in the course of trade” 1 the employer, the case of Walker v. Industrial Acc. Com., 177 Cal. 737 [171 Pac. 954, L. R. A. 1918F, 212], is decisive. It was there held (syllabus) :
“Evidence that a lodging-house keeper was in the habit of employing someone to help out the chambermaid in taking up carpets and matting, and cleaning walls, transoms, windows, and curtains, warranted the conclusion that the person employed was engaged in the usual course of business of the employer, covering the normal operations which formed part of the ordinary business carried on by the lodging-house keeper, and that the person so employed, though only casually employed, was not excluded from the benefits of the Workmen’s Compensation Act by section 14, which excludes from its benefits any person ‘whose employment is both casual and not in the usual course of the trade, business, profession, or occupation of his employer’.”
That decision, together with the plain language of the statute, leaves no room for doubt regarding the fact that the services rendered by the applicant were “in the course of trade” of his employer, if there was a relationship of employer and employee as contemplated by the Workmen’s Compensation Act.
However, on the other hand, in the case of McBurney v. Industrial Acc. Com., 220 Cal. 124 [30 Pac. (2d) 414], it was held that an indigent person who, pursuant to the provisions of the statute (Stats. 1901, p. 636) was entitled to receive, and was receiving, aid in various ways, including “relief work”, or “made work”, from the county welfare
“A convict engaged in the performance of labor on the state highway, under the provisions of chapter 316 of the Laws of 1923, is an employee within the meaning of the Constitution and the Workmen’s Compensation Act.”
However, in cases in which similar facts and circumstances were involved, the McBurney decision is well supported, especially in each of several of our sister states. (Basham v. Kanawha County Court, (W. Va. 1933) 171 S. E. 893; In re Moore, (Ind. App. 1933) 187 N. E. 219; Vaivida v. City of Grand Rapids, (1933) 264 Mich. 204 [249 N. W. 826, 88 A. L. R. 707].) But neither in the McBurney ease nor in either of the eases hereinbefore cited as authority for the decision therein were the circumstances like those herein involved. In each of such cases the applicant for aid was legally entitled to receive it. Especially in the McBurney case, by the terms of the statute the county was required to support the applicant. Whether he worked
In the case of Stiles v. Des Moines Council, Boy Scouts of America(1930) 209 Iowa, 1235 [229 N. W. 841], it appeared that at the request of staff officers of the organization of Boy Scouts, a boy who had attained the rank of “Eagle” in such organization, went to a proposed summer camp with the understanding that he was to help prepare such camp for the use of young boys (who paid for their accommodations), and that in payment for such services by the “Eagle scout” he was to receive Ms board and lodging;,; —and it was held that he was not an employee and consequently, on account of an injury received by him in the course of and arising out of his “employment”, he was not entitled to compensation under the provisions of the Workmen’s Compensation Act.
Likewise, in Blust v. Sisters of Mercy, 256 Mich. 1 [239 N. W. 401], it was held that a. young woman who was injured while performing domestic duties in return for “normal training” in an academy for the purpose (in accord with statutory requirements) of qualifying her as a teacher in the public or in the parochial schools of the state of Michigan, was not an employee within the meaning of the statutory provisions contained in the Workmen’s Confpen-sation Law of said state.
But in its facts, the case of Thurston County Chapter, American National Red Cross v. Department of Labor, etc., (1932) 166 Wash. 488 [7 Pac. (2d) 577], more closely resemblesr the instant ease. In the cited case it appears that Red Cross, like Volunteers of America in the instant case, is “a purely charitable organization”; that in the course of its activities Red Cross, like Volunteers of America, solicited and collected from various and sundry sources sums of money to be used in ministering to those who were destitute and in need of aid; that in pursuance of its policy in that regard, “Red Cross furnished each man performing a day’s labor groceries, clothing, or medical services to the
From a consideration of the American authorities on the subject, and especially the ease of McBurney v. Industrial Acc. Com., supra, to which reference hereinbefore has been had, it becomes clear that the trend of the decisions, notwithstanding the broad general terms expressed in the various statutes by which compensation is provided, as applied to “all” corporations and “public agencies” for injuries sustained by workmen in their employ arising out of and in the course of their employment, is toward a construction that, in the exercise of their charitable functions, in effect exempts charitable corporations from the operation of the law as applied to individuals, or to the ordinary business corporations. The reasons usually assigned for such conclusion are that by common law no liability existed; that the legislature presumably was aware of such state of the law; and that in the absence of special language by virtue of which such liability was created, the presumption must be that the legislature intended that the exemption that existed at common law should not be disturbed. Moreover, that the plain intent of the Workmen’s
In accord with the authorities to which attention herein-before has been directed, it is ordered that the award of the respondent commission be and it is annulled..
A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 6, 1934.