262 P. 757 | Cal. | 1928
THE COURT.
Certiorari to review an award of the respondent Industrial Accident Commission. An application for adjustment of claim was filed with the respondent Commission on behalf of the father and dependent minor son of one Leo Loya, deceased. At the time of his death on January 3, 1926, the deceased was in the employ of the Southern Pacific Company as a member of a section crew operating upon the lines of said railroad in the vicinity of Los Angeles. After hearing it was found that the Southern Pacific Company was the general employer of the deceased and that the Wm. Fox Vaudeville Company was the special employer for whom he was rendering service when fatally injured. Petitioner, as insurance carrier of the Wm. Fox Vaudeville Company, was thereupon directed to pay the death benefit awarded to the minor son of deceased. No award was made in favor of the father, for it was found that he was neither wholly nor partially dependent upon the deceased for support. In this proceeding we are confronted by the question of whether or not the evidence adduced upon the hearing before the respondent Commission warrants and supports the finding of the relation of special employer and special employee at the time of the accident as between the Wm. Fox Vaudeville Company and Loya, the deceased. If this finding is without support in the record the order directing petitioner, as insurance carrier of the Wm. Fox Vaudeville Company, to pay the death benefit would be in excess of the Commission's jurisdiction.
It appears from the transcript that on the morning of January 3, 1926, the crew of laborers of which Loya was a member proceeded under orders of the Southern Pacific Company from their home base at Saugus, which lies between Los Angeles and Castaic, to Camulos, beyond Castaic, where they assisted in clearing a wreck on the line. This work having been completed the crew returned to Castaic and at approximately 1:30 P.M. of that day reported to the Wm. Fox Vaudeville Company, then on "location," for the filming of moving pictures. To secure certain train *54 scenes necessary to the completion of the picture being filmed the Fox company had previously arranged with the Southern Pacific Company to have present at Castaic a special moving picture train together with a gasoline operated motor-car to be used to transport the camera during the filming operations. As stated, this latter car with its crew reported at Castaic about 1:30 P.M. to the agents of the Fox company. The filming of the desired scenes consumed the greater part of the afternoon. At approximately 4 P.M. the crews of both the train and smaller car were dismissed by the assistant director of the film company. The latter crew, apparently under direction of the section gang foreman, thereupon proceeded towards Saugus, the home base. In some manner the small car became derailed during this trip and the deceased was thrown to the ground. The injuries received were such as to almost immediately cause his death. At or about the time arrangements were made for the use of the railroad facilities the film company, through an agent, executed a written instrument purporting to be an indemnification agreement whereby the Fox company agreed, in part, "To pay for any injury or damage that may occur to the property of the Southern Pacific Company or its employees through the use of its property by the undersigned which may be sustained by reason of any cause whatsoever, reasonable wear and tear excepted." Issue has arisen herein as to the validity and effect of this agreement. With the merits of this dispute we are not concerned, for the conclusion we have reached renders it unnecessary that we pass upon the validity of said agreement.
The sole question presented herein would seem to be whether the deceased at the time of his death was in the special employ of the Fox company so as to render its insurance carrier, petitioner, responsible under the provisions of the Workmen's Compensation Act. [1] It is now well settled in this state that an employee may at the same time be under a general and a special employer. (Famous Players Lasky Corp. v. Industrial Acc.Com.,
In the case of Famous Players Lasky Corp. v. Industrial Acc.Com., supra, it is declared that "where either by the terms of the contract or during the course of its performance the employee of the alleged independent contractor comes under the control and direction of the other party to such contract and suffers injuryin the course of and in consequence of such direction andcontrol, the relation of both general and special employer may be held to exist, and the injured employee has been held entitled to compensation from both the general and the special employer." (Italics added.) The opinion in that case also quotes approvingly from De Noyer v. Cavanaugh, supra, wherein it is stated: "If the men are under the exclusive control of the special employer in the performance of work which is a part of his business, they are, for the time being, his employees." (Italics ours.) We cannot accept the contention advanced by counsel for the respondent Commission that the "facts in the case at bar are almost four-square with those presented in the case of FamousP.L. Corp. v. I.A.C.," supra, for in that case it very clearly appears that the claimant was *56 injured while performing under the immediate direction of the agents of the film company and during the actual filming of scenes. It is readily apparent, therefore, that at the very time of the accident there involved the relationship of special employer and employee existed and the award against the special employer was proper. The case of Employers' L.A. Corp. v.Industrial Acc. Com., supra, approves the following test: "In determining whether, in a particular act, he is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result. . . . `The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.'" Following a review of the authorities the case of Stacey Bros. etc. Co. v.Industrial Acc. Com., supra, states that "the real test of what constitutes special employment may be said to be found in the character of the control and supervision exercised by the alleged special employer over the work and the employee engaged in the doing of the same."
[2] With these principles before us we experience no hesitancy in declaring to be without support in the record the finding to the effect that the relationship of special employer and employee existed as between the Wm. Fox Vaudeville Company and the deceased at the time of the accident. [3] Of course, the findings of the Industrial Accident Commission are subject to review only in so far as they have been made without any evidence whatever in support thereof. (Southern Pacific Co. v.Industrial Acc. Com.,
[4] The only evidence which might seem to lend support to the contention that the deceased at the time of his death was still in the special employ of the Fox company *58
is in the form of a bill, introduced in evidence, presented by the Southern Pacific Company and paid by the Fox company. Certain witnesses called by the Southern Pacific Company testified that the amount stated in the bill represented, among other things, the time consumed by the section crew in returning to the home base at Saugus. It is argued that the payment of this bill by the film company is evidence that it regarded the deceased as an employee at the very time he met with his death. With this conclusion we cannot agree. The film company produced witnesses who testified, in effect, that the bill was paid without exact knowledge of its import and merely to satisfy the claim presented by the railroad company. This being so, it can hardly be said that the payment of the bill constituted an admission upon the part of the film company that the deceased was at the time of the accident in its special employ. [5] Moreover, it has been held that the mere payment of wages or salary, of itself, is insufficient to establish that the recipient thereof is the servant of the one paying the same. (Arnett v. Hayes WheelCo.,
For the foregoing reasons the award is annulled and the cause remanded to the respondent Commission for further proceedings in accordance with the views herein expressed.