161 P. 274 | Cal. Ct. App. | 1916
A writ was issued in this proceeding to review an order of the Industrial Accident Commission whereby it awarded to the dependent parents of one Jay McLeod compensation for his accidental death while in the employ of Roy Kirkpatrick, defendant in that case and one of the petitioners herein. Jay McLeod was regularly employed by Kirkpatrick as a driver and teamster in connection with Kirkpatrick's business, which was that of contract teaming and hauling. On that day the Blinn Lumber Company requested the Pasadena Transfer Company to furnish a team and driver for the delivery of some lumber. The Pasadena Transfer Company called upon Kirkpatrick to furnish a team and driver to fill this order. Thereupon Kirkpatrick directed McLeod to take his team and do the hauling required. As Kirkpatrick did not have a wagon suitable for hauling lumber, a wagon of the Pasadena Transfer Company was used. While using said wagon and the horses of Kirkpatrick in hauling lumber for the Blinn Lumber Company the accident occurred which resulted in the death of McLeod. The Southwestern Surety Insurance Company is the insurance carrier for Kirkpatrick, *670 and had insured him against liability for compensation for injuries sustained by his employees in connection with his business.
Petitioners' first contention is that at the time of the accident McLeod was not the employee of Kirkpatrick, but was the employee of the Blinn Lumber Company, and that therefore Kirkpatrick was not liable for compensation to McLeod or to his dependents. The argument is based upon rules which often have been enforced in cases arising out of injuries to third persons through negligence of employees, and cases arising out of negligence resulting in injuries to employees, wherein it became necessary to determine who was the employer or master responsible for the acts of the servant or liable for injuries to the servant. It has sometimes been held that where the direct or immediate employer furnishes his servant to a third person to do work of the latter, and places the employee under the exclusive control of such third person in the performance of the work, the employee becomes for that particular purpose the servant of him to whom the employee is furnished; with resultant responsibility on the part of the employer whose work is being done. An instance of this kind is shown inCotter v. Lindgren,
The Workmen's Compensation, Insurance and Safety Act, in sections 13 and 14 thereof, furnishes its own definition of the terms "employer" and "employee." The term "employer" includes every person who has any person in service under any contract of hire, express or implied. The term "employee" includes every person thus in the service of such employer. The decisions in negligence cases such as those above mentioned are not necessarily controlling in cases like the present; for the liability of the employer in this case arises, not from any wrong done by him, but from the statute which imposes such liability upon persons bearing toward each other the relation of employer and employee as defined in the statute. While this appears to be the first case in this state in which the courts have been called upon to review an award of the commission for injuries received by an *672
employee hired out by one employer to another, the same questions have been presented under the workmen's compensation acts in other states. In Re State Workmen's Compensation Comm.
(Dale v. Saunders Bros.),
In Rongo v. R. Waddington Sons,
Petitioners further contend that "Kirkpatrick not being the immediate employer, would be considered as a principal and intermediate contractor, and would be excluded from liability under subdivision 1 of subdivision d, section 30, of the Workmen's Compensation, Insurance and Safety Act." Even without taking into consideration the effect of section 30 under the construction given to it in Carstens v. Pillsbury,
Finally, petitioners contend that the act under consideration, so far as it provides or attempts to provide for compensation to others than employees, is unconstitutional. This question has been determined adversely to petitioners' contention, by a recent decision of the supreme court. (Western Metal Supply Co. v. Pillsbury,
The award is affirmed.
James, J., and Shaw, J., concurred.