185 P. 870 | Cal. Ct. App. | 1919
Certiorari. Petitioner was the housekeeper, living with her son-in-law and daughter, where she performed some service and for which she received, as expressed in her own language, her "board and upkeep." In addition to this she was given by a son the sum of $25 per month to assist in her support. At the same time she owned four small frame houses which she rented to tenants, the net income from which, offsetting expenses, appears to have been, during the period immediately preceding the event concerned herein, no amount whatsoever. An agent attended to the renting of these houses and collected the rental thereof. This agent employed a carpenter to repair the roof of one of the houses; the time consumed was about one hour and the charge made for the service thirty cents. While descending from the roof the carpenter fell and was injured. He afterward prosecuted a claim against the petitioner under the Workmen's Compensation Act. The commissioners, by a majority decision, made an award against petitioner requiring the payment of a considerable sum of money for hospital bills, physicians' charges and expenses, together with a weekly allowance to continue during disability. It is the contention of the petitioner that the award made to the applicant was without authority of law and should be annulled. The particular finding made by the commission, the conclusions contained in which the petitioner contends are not justified by the evidence, was the following:
"The general and usual occupation of the defendant was that of housekeeper. She owned four houses which she rented for residence purposes, upon one of which houses the applicant was employed as aforesaid, to make certain repairs upon the roof. Such repairs could have been made within one day, and at a cost less than one hundred dollars ($100), and said employment was therefore casual. But the maintaining and renting of said houses was a trade, business, profession or occupation of the employer, and the repair of said houses was a service tending toward the preservation, maintenance or operation of the business premises or property of the employer, and, therefore, that at the time of said injury the employee was not engaged in any of the occupations or employments excluded by section 8 of the *727 Workmen's Compensation Insurance and Safety Act of 1917, from the provisions of said act and the employee and the employer were subject to the compensation provisions of said act and to the jurisdiction of this commission."
[1] The case here turns altogether upon the question as to whether the owning and renting of the four small houses constituted a "business" within the meaning of the Compensation Act. That act, as amended in 1917 (Stats. 1917, p. 831, at p. 836), provides in part as follows: "The phrase 'course of the trade, business, profession or occupation of his employer' shall be taken to include all services tending toward the preservation, maintenance or operation of the business, business premises or business property of the employer. The words 'trade, business, profession or occupation of his employer' shall be taken to include any undertaking actually engaged in by him with some degree of regularity, the trade name, articles of incorporation or principal business of the employer to the contrary notwithstanding." As we understood the argument of respondent, it is not contended that under the ordinary definition to be given to the words "trade or business," the owning and renting of a house or houses by a person would bring such person within the terms of the compensation act. If the conclusion were otherwise, then it would be immaterial whether the individual owned one or twenty houses, so long as they were rented to other persons and an income derived therefrom. Under the English act, which has furnished the model and substance for many of the state enactments covering this subject, including our own (Fidelityetc. Co. v. Industrial Acc. Com.,
The findings and award of the respondent commission are annulled.
*729Conrey, P. J., and Shaw, J., concurred.