244 P. 321 | Cal. | 1926
Petitioners, who are the surviving wife and children of Axel Johnson, filed with the Industrial Accident Commission an application for the adjustment of a claim for workmen's compensation asserted to be due on account of the death of Johnson, alleged to have been caused during the course of his employment as a member of a copartnership consisting of the E.B. A.L. Stone Company, one of the respondents herein, and said deceased. Claim for compensation was made under the definition of the term "employee" found in section 8 (b) of the Workmen's *235 Compensation Act, which provides that "a working member of a partnership receiving wages irrespective of profits from such partnership, shall be deemed an employee within the meaning of this section." The respondent Commission denied an award and dismissed the application upon the ground that the quoted language was within the condemnation of previous decisions of this court holding other portions of the same section unconstitutional. This proceeding in certiorari was thereupon instituted to test the correctness of the Commission's ruling.
There is no dispute as to the facts involved. It is admitted that the decedent Johnson was a working partner with the respondent Stone Company under a contract providing that Johnson was to furnish a towboat owned by him, and to operate a lighter of the respondent Stone Company, and to pump sand and gravel which was to be sold, the proceeds, after deducting certain expenses provided for in the contract, to be equally divided between the Stone Company and Johnson. The contract further provided that Johnson was to receive a salary of $150 a month, which amount was one of the items of expenses allowed in the contract, which were to be equally divided. It is conceded that the injuries sustained, and proximately causing the death of the decedent, were sustained by him while acting as such partner. The sole question presented to this court is the constitutionality of that portion of section 8 (b), supra, which classes a working member of a partnership receiving wages irrespective of profits as an employee, and brings him within the scope of the application of the Compensation Act, which was not added to the statute until 1917 (Stats. 1917, p. 835).
Our Workmen's Compensation Act, like those of most of the states, followed closely the English acts of Parliament upon the same subject matter. The English courts have uniformly held against compensation being awarded working members of partnerships. On the authority of one of the leading English cases, Ellis v. Ellis Co., [1905] 1 K.B. 324, 7. W.C.C. 97, this court decided that the provisions of the Workmen's Compensation Act, prior to the amendment of 1917, were not applicable when the person injured was in the position of both employer and employee; and held that one partner could not recover compensation from *236
the partnership of which he was a member for injuries received while performing services for it. (Cooper v. Industrial Acc.Com.,
Almost the precise question presented by this proceeding in review was considered in Gallie v. Detroit Auto AccessoryCo.,
It has frequently been held that partners, by express contract, may agree that one partner receive compensation for his service. (Nevills v. Moore Min. Co.,
The more recent decisions of this court, relied on by respondents, are not in point. Some general language used inFlickenger v. Industrial Acc. Com.,
We conclude, therefore, that at the time the decedent Johnson received the injuries resulting in his death he was subject to the provisions of the Workmen's Compensation Act. Consequently, the respondent Industrial Accident Commission had jurisdiction of the application for adjustment of compensation filed by the petitioners herein. Its order dismissing the claim of the applicants, the petitioners here, is set aside, and the case is remanded for further proceedings before the Commission in keeping with the views herein announced.
Shenk, J., Seawell, J., Curtis, J., Lawlor, J., Lennon, J., and Richards, J., concurred.
Rehearing denied.