181 P. 788 | Cal. | 1919
Lead Opinion
Two petitions are filed to review the same order of the Industrial Accident Commission, awarding compensation for the death of Robert E. Kendall. The award *498 was made under the provisions of section 25 of the Workmen's Compensation, Insurance and Safety Act of 1917 (Stats. 1917, p. 831), against C.E. Perry, as the immediate employer, and against the Pacific Gas Electric Company, as the principal employer.
Both petitioners claim that the evidence is insufficient to show that the relation of employer and employee existed between Perry and the deceased. The only question of fact in the case is whether the relation between Perry and the deceased was that of employer and employee, or that of a co-partnership. It appears from the evidence that Perry, as an independent contractor, entered into a contract with the petitioner, Pacific Gas Electric Company, to furnish for $20 a day a five-ton road roller, with a man and necessary gasoline and supplies, for the purpose of rolling the earth that had been filled into a trench in which the gas-mains of the petitioning company had been laid. After the making of this contract Perry entered into an arrangement with the deceased by which the deceased operated the roller in question. The deceased was crushed between a heavy automobile truck and the road roller while so engaged, and so injured that he died. In the absence of other evidence the law would imply a contract of employment. That a proposition was made by Perry to the deceased by which the latter was to operate the road roller upon a "fifty-fifty basis" is established by the testimony of Perry and others, and is found by the commission to be a fact. The commission also found that the proposition was never accepted, but was still under consideration at the time of the fatal accident. Perry and his wife testified to conversations with the deceased tending to show an acceptance of Perry's proposition. To rebut this evidence the testimony of decedent's wife, his sister, and other witnesses was received to prove declarations of the deceased made from time to time and up to the day before the accident, to the effect that the deal between Perry and himself had not been consummated. This was hearsay, and petitioner Perry, conceding its admissibility under the express provisions of the statute (Stats. 1917, sec. 60a), states: "It may be said that it is for the commission alone to say as to the weight of credibility to be given to this evidence. If so, then the commission may, arbitrarily or otherwise, as in the present case, disregard, in toto, all evidence heretofore considered by the law *499
and the courts as admissible, and entitled to any consideration at all, and base its findings on the sandy foundations of some hearsay evidence giving to such hearsay as great or greater weight than it would be entitled if it were concededly of the most competent character, without limitation on the commission of any sort, or redress on the part of one aggrieved thereby." It being granted that the testimony was admissible, it follows, of course, that the weight of the evidence is to be determined by the commission. It is true that when we depart from well-recognized principles of law concerning the admissibility of evidence, we embark upon a sea of difficulty. This was pointed out in August, 1915, in Englebretson v. IndustrialAccident Com.,
The Pacific Gas Electric Company asks for a review on the additional ground that section 25 of the act of 1917 is unconstitutional, and that therefore the commission had no jurisdiction to entertain the proceeding or to make the award against it. It has been held that the state constitution did not contemplate a law authorizing an award of compensation by the Industrial Accident Commission against some person *500
other than the employer. (Carstens v. Pillsbury,
Respondent calls our attention to an amendment of section 21, article XX, adopted at the general election in November, 1918. This amendment completely revises that section. As it was adopted long after the accident in question, it is conceded that it has no, application, save, as is contended, that the last paragraph of the amendment has "swept away any technical defect which might have existed to hamper the full exercise of jurisdiction by the Industrial Accident Commission under the statute which was in force when the amendment was adopted. The portion of the amendment thus relied upon is as follows: 'Nothing contained herein shall be taken or construed to impair or render ineffectual in any measure the creation and existence of the Industrial Accident Commission of this state or the state compensation insurance fund, the creation and existence of which, with all the functions vested in them, are hereby ratified and confirmed.' " (Italics ours.) For the purposes of this ease it is sufficient I to notice that so far as the amendment in effect ratifies and confirms existing legislation purporting to vest power in the commission to award compensation against persons other than the employer, such power never was vested in the commission for the reason that the legislative attempt to vest such power was unconstitutional and void. (Carstens v. Pillsbury, supra.) The amendment does not attempt to ratify this futile legislation, but only to ratify in the commission "functions vested in them." This amendment did not, therefore, purport to extend the power of the commission beyond that which had theretofore been lawfully vested in them. The fact, if it be a fact, that the commission was exercising the functions provided by the law of 1917 (sec. 25), that is, that they were in fact awarding compensation to employees against others than their employers, does not "vest" such functions within the meaning of the amendment, which must obviously refer to legal authority. It should be observed that the amendment did not attempt to ratify the Workmen's Compensation Act of 1917, but merely to confirm powers already lawfully vested in the commission. This distinction can be best emphasized, perhaps, by calling attention to the difference between the language under consideration and that of the constitutional amendment of October 10, 1911, with relation to the Railroad Commission *503 and the Railroad Commission Act (Const., art. XII, sec. 22), wherein it was provided as follows: "The provisions of this section shall not be construed to repeal in whole or in part any existing law not inconsistent herewith, and the 'Railroad Commission Act' of this state approved February 10, 1911, shall be construed with reference to this constitutional provision and any other constitutional provision becoming operative concurrently herewith, and the said act shall have, the same force and effect as if the same had been passed after the adoption of this provision. . . ." In the latter case the legislation was expressly ratified and the method of its interpretation pointed out in the constitutional amendment, while the amendment under consideration merely purports to ratify powers and functions already vested in the commission. If it was proposed to ratify and confirm legislation otherwise unconstitutional, that purpose should have been clearly expressed.
[2] It follows, then, that section 25 of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 853) is unconstitutional in so, far as it attempts to authorize the awarding of compensation against a third person not an employer, for the same reason that the previous statute was unconstitutional, and that the amendment to section 21 of article XX of the constitution does not ratify the legislation condemned as unconstitutional in Carstens v. Pillsbury, supra.
Petitioner Perry also complains that the award was excessive, but upon the basis of his own testimony that one could work at the business two hundred and sixty days in a year at six to seven dollars a day the award was not excessive.
The order awarding compensation against petitioner C.E. Perry is affirmed, and that portion of the order seeking to award compensation against the Pacific Gas Electric Company is annulled.
Shaw, J., Lennon, J., Melvin, J., Olney, J., and Angellotti, C. J., concurred.
Concurrence Opinion
I concur specially in the judgment and in what is said on the question whether the relationship of employer and employee existed between C.E. Perry and the deceased. I also concur in the judgment on the constitutional question. This I would not be prepared to do, however, if the questions decided inCarstens v. Pillsbury, *504