*1 is the the condition specified mere use time reasonable there issue construction, then correct might suffice. day’s use inasmuch as in- upon the here discusses, bearing issue Defendant by a rail- the service rendered nature of volved, public involved, right as a its public interest company, road way, right public utility to continue use implicit therein, govern- and action of eminent domain operations, regulatory in reference to its bodies ment performing impossibility of it the condition because such regulation. to be are matters defense asserted Those required now defendant if desired. We are not to and do pass upon here merit or appeal their soundness. from judgment entered after demurrer sustained and it merely cannot be said defendant com- because railroad pany operating questions is still those must now be only determined. We hold complaint states cause of action in the provisions view of pleaded. deed there judgment is reversed.

Shenk, J., Curtis, J., Traynor, J., Peters, pro tern., J. concurred. A. No.

[L. 18516. In Bank. Feb. 1943.] L. H. SILBERMAN, Petitioner, v. INDUSTRIAL ACCI-

DENT COMMISSION, CLARK IRVIN al., et Respon- dents. *2 for Petitioner. Dasteel

Joseph H. Respondents. J. Gould for A. and Corten Everett Industrial Accident Commission held the SHENK, J.—The Silberman, employer liable as the special H. Louis petitioner, injured engaged in Clark, a laborer who was while of Irvin Company onto a truck. Mills Construction loading rails On this general employer proceeding of Clark. held liable as annulment of the award petitioner seeks the review ground that there on the sole him as finding support the commission’s no evidence to substantial special employment. into a 18, 1941, entered June On or about agreed city whereby he of Pasadena with written contract city rails from certain streets remove streetcar of the street from which the rails had portions to repave the 25, petitioner entered into On 1941, been removed. June Cohn, doing business as with Theodore written sub-contract Company, under the latter which the Mills Construction rails from streets accordance agreed to remove the Pasa- petitioner and the contract between the with the dena. Company rails Dulien to the Steel petitioner sold the

The place where them P.O.B. truck at the agreed deliver the petitioner contract between up. rails were taken with reference provision Company contained and the Mills A be- dispute on the trucks. arose rails loading orally agreed on and was point, them this tween Mills obtain the services of men to would load the Company supplied petitioner, to be on the trucks and that rails Company reimburse petitioner would the Mills for the loading trucks, on including wages, the rails lia- cost unemployment bility, compensation and insurance, gas, oil and overhead. began excavating the work of

The Mills re- July 1, on or about 1941. In moving rails the course of 30, on October foreman the work and of the Mills Company, telephoned employment agency to secure a la- report borer. Irvin was sent and was told to Clark to the Company. superintendent Upon reporting for finding superintendent, work and was directed begin loading on foreman to rails truck. Clark had assigned him working been at task less than one hour leg, fell slipped causing when a rail on his injury compensation. day’s which he claimed He was for one work which in turn billed amount. petitioner contends work of Clark under- *3 merely by obligations taken him as of one the of Mills the Company under the of sub-contract; terms the that ser- his subject were not or vices tioner; to the direction control peti- that to direct or control Clark’s activities was petitioner reserved the only to and that the obligation which petitioner pay the assumed towas for his services. generally Stacey The rule is in stated Bros. etc. Co.

v. Industrial Acc. 197 164 1072], Cal. P. fol [239 as legal : lows “To establish special employer the relation of special employee appear it by must that either the terms of during contract the or the course of its performance em the ployee alleged independent contractor came under the control and direction of the other party to the contract and injury suffered the result of such direction and control.” In Campbell on Workmen’s I, volume Compensation, sec- requisites tion it is said: “The imposing liability upon general both (1) are: a em- loaned ployee situation, in employee which of one per- is sent to another; (2) form labor for joint a common or participation in to this work and benefit rendition; each for (3) the some power, necessarily complete, not of direction and control over ’ ’ in It details each. has been held that the payment wages of of to itself sufficient establish recipient that the thereof (Independence paying the same. In of the one

is the servant Com., 203 demnity Cal. P. v.Co. that But in addition to circumstance the commission 757].) it is facts from which claimed reasonable in points to other may relationship the be drawn to establish of ferences employment. pointed that under first out his contract with the

It is from the obligated to remove the rails city petitioner Company, the Mills completely. Whether under streets to sub-contract, required to load rails on trucks was petitioner’s in subject dispute of which resulted assum a a petitioner then, sep under of that work. The ing the cost Company, him Dulien Steel bound contract with the arate Prom on board the trucks. all that self deliver the rails to job loading fairly inferred that of may be it was done job. petitioner’s was the trucks rails on the seeing for the that pointed that is next out It part Company carried out its of the contract person David S. kept being performed. place where the work was at the Priedner job by assigned that he was testified Mr. Priedner concerned”; it all that was “peace-maker petitioner as requests city duty attention to his contract, as those by the Mills its performance city’s representa- to him the communicated requests were anything city “of that the he notified tive; that when “suggest” done he would that is not order” might require Company, of Mills what Urban, superintendent to Mr. occasionally watched the load- city required, and Schultz, them. Mr. Charles T. rails counted ing of the get testified that whenever he failed inspector, street Company’s foreman he inform would from results requirements and be assured of his would Mr. Priedner care of.” would have taken “he Mr. Priedner evidence his con urged It its the Mills the activities of trol of *4 no sug control and more than a of authoritative lack shows suggestive of that a certain measure control; and gestive may be exercised with independent contractor by control employer, citing Winther v. becoming liable as out Cal.App.2d 131 P.2d The 342]. right may force with reference to of have argument some part petitioner on the control, reserved, or exercised having to do with the under the sub-contract operations over in the positions their embedded rails from the removal of But refer- of the surface. with repavement the street furnishing of task of trucks performance the ence to the ultimately peti- the rails, which loading them with puts on a more of control obligation, the evidence tioner’s I, (vol. Campbell also observes Mr. aspect. authoritative question §463) whether frequently that difficult it boundary from overstepped contractor indefinite “has into, the mea- suggestive authoritative control.” Here mere responsible party of as the petitioner sure control which the doing which had over men the work to exercise party under his contract with a third was bound to do than suggestive, much than in fact it could be less more in the one authoritative. of control was crucial The issue body may proceeding finding properly it before the fact resolving in justified be said the commission petitioner. The award is affirmed. Peters,

Gibson, J., Carter, J., pro J. Traynor, J., C. tem., concurred.

CURTIS, J. —I dissent. Silberman, as majority opinion holds that special employer, jointly Construc- liable with Mills general tion Company, employer, injuries sustained general an employee of the contractor. duty rails,

It was the of Silberman load the referred they after of opinion, were removed from the streets of Pasadena. The Construction agreed agreed to load rails and Silberman com- work, pany expense doing the entire incurred it in said wages including “liability, compen- employed, the men handling insurance, wage sation tax and overhead fees for men company Clark and all other this material.” hired wages, job, paid compensation on the them their and took out covering them. company Silberman insurance any charges. no control full for He had over these company. As stated the commission (page 6) seeing “For its answer: out its con- carried end Construction in the tract, (Silberman) kept work un- place S. Friedner at the where the person of David *5 ’’ being der contract performed. But neither Silber- representative man nor his any had any control over company’s employees. simply to see company performed that the its contract. court This has held “. . . that for liability to attach injured person must been at1 have subject the time of the accident to the direction and control

of such employer, for it is this to control and direct employee activities of the gives rise to special employer.” status (Independence Indemnity Co. v. 51, 203 Cal. 757].) P. commission found that Mills Construction was insured and that Silberman was not insured. He evi- dently upon assumption acted long pay- that as as he was ing the Mills Construction insuring for the men em- ployed by job, it on the not necessary for him to double insurance. aAs result of opinion, Silberman, although compensation has full pro- insurance to company, tect the nevertheless still held personally injuries liable sustained one of them. my In opinion the award Silberman an- should be nulled.

Edmonds, J., concurred. F. No. 16815. In Bank. Feb.

[S. 1943.] HISE, Building HARLEY Commissioner, etc., and Loan Petitioner, THE v. SUPERIOR AN COURT OF LOS COUNTY, Respondent. GELES