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(230 P.)

ing about 12; that a man identified as Ed., had volunteered to tear off the old shingles Welsh, whom he did not employ, helped him the first day by carrying the "shingles up so they would be handy"; that the pastor did not suggest how he was to do the shingling; that he was to shingle the church in "the regular way"; that the pastor did not tell him at which gauge to lay the shingles; that the ridge board and cross were to be fixed, and that from another source, referring to Ed. Welsh, he got the information that the cross was to be taken off and a new one put on, but he expected the pastor to come to Linden to tell him what to do about the ridge | board and the cross; that he would have stopped work if he was ready to fix the ridge board and the cross if the pastor had not come; that when Ed. Welsh came on the first day to tear off the old shingles the applicant told him it was a bad idea because it would leave part of the roof uncovered if it rained, so he suggested that Ed. Welsh might carry up the shingles, and that a carpenter works 5 days per week at the average pay of $8 per day.

The pastor testified: "I asked the state employment bureau for a shingler, and the gentleman in charge told me after a few days that he had a man with this qualification, so I went down and had a talk with Mr. Eubanks; I asked him if he would take the job of reshingling the roof; he said he had sufficient experience to handle it. I asked him, 'How much do you want? and he said, '$1 per hour.' I told him this place was far removed from my headquarters or

my residence, and I would leave him there, and that he could come back to Stockton in the evening or stay there if he could find a

place. Nothing definite was said about his working 8 hours, or 10 hours, or 12 hours, only I made it plain to him that he was at liberty to work as many hours as he wanted to at the price of $1 per hour. ** * * I was at Linden when Mr. Eubanks started work; I may have been around for a quarter or half an hour, and I told him to go ahead, and I told him I would not see him for a few days, that I had no occasion to go to Linden. I told him, 'If you want any money, I will advance you some""; that while the applicant was at the hospital after the accident he asked him if he needed any money, to which he replied, "No," and that, "I said I owed him some money, and he said he worked 8 hours and I gave him $8. Mr. Jeffry. Q. Was anything said by you to Mr. Eubanks about fixing the cross, or about other matters? A. There was some trouble about how the top of the roof should come together. The present arrangement seems to be oldfashioned. Now, there is another way, and I told Mr. Eubanks to go ahead and fix that and other little problems that would come up. Q. What can you state about this man he spoke of assisting him on that job? A. Mr. Welsh, and some other men of the parish,

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so to leave a clear field for Mr. Eubanks for his particular job. They volunteered to do this, to tear off the old shingles, and Mr. Welsh showed up on the job Tuesday morning, or the day of the injury, and he undertook to take off some of the shingles"; that tearing off these old shingles was not in the original agreement with applicant; that he did not fire the first man, he simply quit of his own accord because he could not do the work; that he did not expressly reserve the right to fire applicant at will; that he expected him to finish the job, but, if upon an occasion of visiting Linden in the next few days he had found him, instead of on the roof, playing checkers with the village blacksmith, he might have felt himself entitled to break the contract; that he would not have fired applicant if he were laying the shingles improperly because he would not have known whether they were being laid correctly or not, and that when applicant suggested that the shingles already on should be taken off looked bad, but I thought that after all it and put on properly he said, "I noticed they wouldn't matter, that very few tourists pass that way, and it would not matter to leave the shingles as they were." In support of the additional finding on rehearing that the work was casual, the following testimony appears:

G. A. Walker testified that he estimated the job at $75; that it would take about 7 days to finish the work; and that it would have taken a couple of hours to replace the

ridge board and the same length of time to ter who finished the job after applicant was fix the cross. William Hansen, the carpeninjured, testified that it took two persons

fix the cross, 2 hours to take off the old shin22 days to complete the work, 1 hour to gles, and 2 hours to replace the ridge board, and that he and his assistant could each lay about 6,000 shingles per day.

The petition for a writ of review is based upon the grounds that the award of the Commission was without and in excess of its jurisdiction, that the evidence does not support the award, and that the order and dethe employment of applicant was casual, the cost of the work being under $100, and, the job being of less than 10 days' duration, that said employment was that of an independent contractor, no direction as to the manner of doing the work having been given and no restriction upon him as to the time to work, and that "the casual repairing of the church building is not in the 'course of the business' of petitioner as that term is used in the Compensation Act," the proof only showing that the title to the chapel is in the Roman Catholic Archbishop of San Francisco, a corporation sole, and that religious services peculiar to the Roman Catholic denomination are had in the chapel, and there being no evidence that such building is a business prop

cision are unreasonable. It is contended that

erty or business premises within the meaning, be "fired," thereby showing that as far as of the Compensation Act.

1. When the award was made against the pastor the Commission found that the services were not casual, and later, when the proceeding was dismissed as to him and an award made against petitioner, it was found the services were casual. In view of this and that the evidence is sufficient to sustain the latter finding it will not be necessary to pursue the point further.

[1] 2. The next point is whether the applicant was an independent contractor or an employee. It was held in Flickenger v. Industrial Accident Commission, 181 Cal. 425, 184 P. 851, 19 A. L. R. 1150, that the definition of an independent contractor contained in the amendment of the act in 1917 (Stats. 1917, p. 831) did not restrict or enlarge the meaning of the term; and hence the status is determined by rules used before the creation of the Industrial Accident Commission in ordinary actions at law.

"Whether a workman is an employee within the Workmen's Compensation Act or an independent contractor is a question of fact upon which the judgment of the Industrial Commission is conclusive, where the facts are in dispute, and becomes a question of law only when but one inference can reasonably be drawn from the facts." Federal Mining & Smelting Co. v. Thomas (Okl. Sup.) 225 P.

967.

It was said in Western Pacific R. R. Co. V. Industrial Accident Commission (Cal. Sup.) 224 P. 754:

"It is the rule that where from the evidence two opposing inferences may be drawn, that inference which is accepted by the Commission must be sustained if there is evidence in the record to support it and if it is a reasonable inference to be drawn from that evidence. Eastman v. Industrial Accident Commission, 186 Cal. 587, 598, 200 P. 17: Polar Ice, etc., Co. v. Mulray, 67 Ind. App. 270, 119 N. E. 149."

See, also, Tartar v. Industrial Accident

Commission (Cal. Sup.) 218 P. 39; Employ

ers' Liability Assurance Corp. v. Industrial Accident Commission, 182 Cal. 612, 187 P. 42.

[2] Upon the evidence above cited we cannot escape the conclusion that the facts reasonably justify the finding that the applicant was an employee. As to the material factor of control or power of control an inference that the power to control was retained by the pastor would find support in the evidence. The applicant testified he was told to do the work in "the regular way"; that he should place the shingles at the top of the roof according to the modern method; and that he should decide any little problems that came up. When the applicant suggested that the shingles put on by his predecessor should be taken off and put on properly the pastor told him they should be left on; that it did not matter if they were not placed correctly.

he was concerned he did not suppose he was doing the work independent of any control. He understood the pastor was bossing the job, and expected to be given instructions as to what he should do with the cross and the ridge board. The cases of Pryor v. Industrial Accident Commission, 186 Cal. 169, 198 P. 1045; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721; Fidelity & Deposit Co. v. Brush, 176 Cal. 448, 168 P. 890; and Connolly v. Industrial Accident Commission, 173 Cal. 405, 160 P. 239-are cited to the point that in applying the test of control the distinction between an order and a suggestion is to be observed, and it is urged that the foregoing testimony would not justify an inference that it was obligatory upon the applicant to follow directions. It is true it is not necessary to show that an independent contractor has an office or business in which he hires assistants (Prince v. Schwartz, 190 App. Div. 820, 180 N. Y. S. 703), or that the work undertaken was within his calling (Roberts v. Industrial Accident Commission, 52 Cal. App. 31, 197 P. 978, hearing in Supreme Court denied). The fact that the applicant applied to an employment bureau for work is some evidence he did not hold himself out as an independent contractor, but was seeking employment as an employee, and this undisputed fact also tends to support his testimony that he was under the control and direction of the pastor in doing the work.

[3] Any conflict in the testimony of the pastor and the applicant must be resolved on the side of the findings. The testimony varies in several particulars. For instance, the applicant stated he was employed by the day; that he understood he could be discharged at any time; and that the pastor was "bossing" the job. The pastor, on the other hand, stated that the applicant was to be paid by the hour; that he hired him for the job; that

he expected him to finish it: that he could work as many hours in the day as he chose: charge the applicant: and that he told him that he did not understand he could dishe could not be at the chapel while the shingling was being done. He also stated he would not know how to direct the work of

shingling, and that he made suggestions but gave no orders. The finding of the Commission cannot be disturbed. Dearborn v. Industrial Accident Commission, 187 Cal. 591,

203 P. 112: Great Western Power Co. v. 218 P. 1009; Myers v. Industrial Accident Industrial Accident Commission (Cal. Sup.) Commission (Cal. Sup.) 218 P. 11.

3. The third contention of petitioner is that

that any business operation was carried on in "There was absolutely no evidence to indicate this church or that your petitioner carried on any business of any character either in this church or elsewhere. The only evidence is that the title of the church is held in the Romar.

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(230 P.)

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ration sole, and that religious services peculiar | employer with some degree of permanency. to the Catholic denomination are had in the The business side of the Archbishop's office church. There is no evidence in the record in- is as permanent an institution as anything dicating that the church building was a business which can be imagined, and the repair of property or business premises or in any wise the many parochial and mission churches, connected with business." schools, etc., of which title vested in the It is urged on behalf of petitioner that Archbishop, is a regular and recurring and the finding of the Commission that the frequent affair of some magnitude, so that church building "operated by it [the Roman workmen engaged in such occupations should Catholic Church] for the carrying out of the not be removed from the protection of the purposes of the organization of said employ- Workmen's Compensation Act. The er among its parishioners 'was California Workmen's Compensation Act therefore in the course of the business of the does not exempt from its operation religious, employer" is not a tinding that "the holding philanthropic, eleemosynary, etc., organizaof church services was a 'business' or that tions as such. All organizations employing the owning of a title to a church property labor, outside of farm labor and household is a business; and that there is no testi- domestic service, are within the act without mony that the church building was a 'busi- regard to the nature of the activity carried ness premises' or that any 'business' was A church, hospital, cemetery, or orphan transacted in connection with it either by asylum must pay wages to all workmen hired petitioner or any other person, and no testi- by it. It is equally subject to the duty of inmony whatsoever that petitioner was en-suring such workmen under the Workmen's gaged in any business either in this church Compensation Act. If the Legislature intendbuilding or elsewhere." In other words, it is contended that the finding does not support the award because it does not state that the church was operated as a business or that the church building was a business premises or business property, and that the evidence would not support such a finding if it had been made. It is also urged:

on.

ed any exemption because of the religious character of petitioner's service to the community, it would have conferred such exemption in express language. Instead it has defined, in section 8 (c) the term 'trade, business, profession, or occupation' as including 'any undertaking actually engaged in with some degree of regularity' without limitation.

"Certainly if the owning of property for inThe term 'profession' is primarily vestment is not a business, then the owning of to identify the three learned professions of a church by a religious organization for pur- the clergy, the lawyer, and the physician. poses of meeting there and worshipping is not a The preservation of church property, renew business as that term is used in the compensa-ing of roofs, etc., is just as incidental to the tion act. Religious worship is the very antith- carrying on of the professional activities as is the renewing of the roof of the factory for a business activity. A church cannot carry on its professional services adequately without buildings, and the upkeep, maintenance, and repair of such buildings is incidental to and a part of the carrying on of its professional activities."

esis of business as the term 'business' is understood. 'Business' applies in its very nature to a holding of oneself out for commercial transactions. Unless there is the commercial element involved, it is not what is ordinarily known as 'business.' * * * A church in which no business is carried on is not a business premises or property, and it was just such property that the Legislature intended to exclude by providing that casual employees were excluded unless they were doing work on business premises or business property."

Respondent contends that the terms trade, business, profession, or occupation of the employer, as used in section 8 (c), are "to be given a broad significance. It is not limited to business operation, in the sense of industrial affairs or business conducted for private profit. * The definition of the term contained in section 8 (c) of the Compensation Act also shows a very strong intent to give the term broader significance than that of recognized industrial occupations. The statutory definition extends the phrase to 'any undertaking

[4] It is admitted that an employment must be both casual and not in the course of the business of the employer to be excluded

under section 8 (c); that is, in order to deny compensation, it is not sufficient to establish the casual nature of the employment, but it must also be established that it is outside of the business of the employer. Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031; London & Lancashire Guarantee, etc., Co. v. Industrial Accident Commission, 173 Cal. 642, 161 P. 2; Walker v. Industrial Accident Commission, 177 Cal. 737, 171 P. 954. L. R. A. 1917F, 212.

Section 8 (c) of the act is as follows: The phrase 'course of the trade, actual- business, profession or occupation of his emly engaged in with some degree of regular-ployer' shall be taken to include all services ity.' The intent is that all injured workmen are to receive their compensation if injured in the ordinary course of operation of an enterprise, occupation or profession, industrial or nonindustrial, actually carried on by the

tending toward the preservation, maintenance or business property of the employer. The or operation of the business, business premises words 'trade, business, profession or occupation of his employer' shall be taken to include any undertaking actually engaged in by him with

it was held that carpenter work on silos to be used on a dairy farm is within the business of dairy farming; it being shown the employers elected to bring themselves within the act. In Rissman v. Industrial Accident Commission, 190 Cal. 619, 213 P. 991, it was conceded by the parties and found by the Commission that the renovating of two houses for the purposes of sale was not in the employers' business. Dearborn v. Industrial, Accident Commission, 187 Cal. 591, 203 P. 112, involved a job of carpentry in the erection of a dwelling house for the occu

question whether the accident arose out of and was in the course of the owner's business, which was that of farming, is not discussed in the opinion, although the Commission found in favor of the owner on those points. The award was based on the ground the work was not casual. According to two other decisions (Lauzier v. Industrial Accident Commission, 43 Cal. App. 725, 185 P. 870, and Ford v. Industrial Accident Commission, 53 Cal. App. 542, 200 P. 667) the making of repairs necessary and incidental to the upkeep of four small frame houses, in the one case, and a flat in the other, which the owners let for hire, is not a business within the contemplation of the Compensation

some degree of regularity, the trade name, articles of incorporation or principal business of the employer to the contrary notwithstanding." Prior to this amendment of the act in 1917 this state accepted the majority American view that neither construction nor repair work is in the course of an employer's business unless he has made it so by customarily engaging in such work. Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031; La Grande Laundry Co. v. Pillsbury, 173 Cal. 777, 161 P. 988; Walker v. Industrial Accident Commission, 177 Cal. 737, 171 P. 954, L. R. A. 1918F, 212; Holbrook v. Olym-pancy of the relatives of the owner. The pia Hotel Co., 200 Mich. 597, 166 N. W. 876; Marsh v. Groner, 258 Pa. 473, 102 A. 127, L. R. A. 1918F, 213; Adam v. Musson, 37 Ill. App. 501; State ex rel. Lennon v. District Court of Douglas County, 138 Minn. 103, 164 N. W. 366; Solomon v. Bonis, 181 App. Div. 672, 167 N. Y. S. 676; Geller v. Republic Novelty Works, 180 App. Div. 762, 168 N. Y. S. 263. We cite the following adjudications by the Commission: Trenholm v. Hough, 1 Cal. I. A. C. Dec. 260; Castellotti v. McDonnell, 1 Cal. I. A. C. Dec. 351; Augustine v. Cotter, 2 Cal. I. A. C. Dec. 59; Brockman v. Sheridan, 2 Cal. I. A. C. Dec. 986; Sutton v. Rabinowitz, 5 Cal. I. A. C. Dec. 29. In Holbrook v. Olympia Hotel Co., supra, it was held that, if the owner of a hotel occasionally employs some one to paint and decorate the rooms, such work would not come within the meaning of the word "business" in the Compensation Act, though it is usual to have work of that nature done from time to time. Even in the acts which classify the employments as hazardous, and include therein the construction, repair, or demolition of buildings, if the employer does not carry on any such occupation, but incidentally employs some one to do that kind of work, he will not be liable, though the incidental work is performed on premises where a hazardous business is carried on. Bargey v. Massaro Macaroni Co., 218 N. Y. 410, 113 N. E. 407: Uphoff v. Ind. Bd., 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329, Ann. Cas. 1917D, 1. But, if the employer customarily does the necessary repairs and alterations by a staff of carpenters regularly employed for that purpose by a department store whose business is not classified as hazardous, he is held to be carrying on a hazardous business as a part of his principal business. Alterman v. A. I. Namm & Son, 190 App. Div. 76, 179 N. Y. S. 584.

Act.

We have examined the law in other jurisdictions with reference to the question whether the trade, business, profession, or occupation includes charitable, educational, religious, philanthropic, or eleemosynary institutions, and have found that in most of the compensation acts such institutions are not in terms expressly excluded from the operation thereof. There are only two, however, Illinois and Pennsylvania, which expressly include such institutions. Rev. Stats. Ill. 1917, p. 1450; Pa. Laws, 1915, p. 736. On the other hand, the states of Idaho and Georgia expressly exclude charitable organizations and institutions from the operation of their respective acts. Ga. Laws 1920, p. 167; Idaho Laws, 1917, c. 81, § 3. A number of the acts are elective, and include within their operation only those employments in which from 3 to 16 employees are regularly employed. It may be that in states where the number of employees determines whether the employer comes within the act nonprofit organizations, if employing the statutory number, would not be excluded. The industries embraced in several of the acts are enuIn 1917 the California act was amended merated and classified as extrahazardous or (Stats. 1917, p. 835) as above set forth, and hazardous. There are a number of acts repair work on business premises or business which expressly apply only to industrial or property and any undertaking actually en- profitable undertakings or businesses, as, for gaged in with some degree of regularity come instance, Colorado, Kansas, Maryland, New within the course of the trade, business, pro- York, West Virginia, Idaho, Hawaii, Nebfession, or occupation of the employer. raska, and, possibly, Washington, Ohio, and There are no cases directly in point, but in Oregon. For example, the New York statute Globe Indemnity Co. v. Industrial Accident provides that "employment" includes employ

(230 P.)

carried on by the employer for pecuniary gain, and the West Virginia act provides that all persons, firms, associations, and corporations regularly employing other persons for profit, or for the purpose of carrying on any form of industry or business, are employers. In Roberts v. Ottawa, 101 Kan. 228, 165 P. 869, it was held that a city constructing a sewer, not being engaged in a gainful enterprise, is not within the Kansas act. In Mullen v. Little, 186 App. Div. 169, 173 N. Y. S. 578, it was held that the harvesting of ice by a farmer for farm purposes, and not as a business or for pecuniary gain, is not within the act of that state. The term "gain or profit," as used in the statutes, means pecuniary gain. Ray v. School District of Lincoln (1920) 105 Neb. 456, 181 N. W. 140; Allen v. State, 173 App. Div. 455, 160 N. Y. S. 85; Redfern v. Eby, 102 Kan. 484, 170 P. 800; Gray v. Sedgwick County, 101 Kan. 195, 165 P. 867, L. R. A. 1918F, 182. The word "business" is held to have a popular meaning, and a permanent and regular occupation whose sole object is gain will not be regarded as "business," unless it is popularly so regarded. Bargewell v. Daniels, 98 L. T. 257: Kelly v. Buchanan, 13 Compensation L. R. 729; McCain v. McDonnell, note to Kelly v. Buchanan, supra; State ex rel. Lennon v. District Court of Douglas County, 138 Minn. 103, 164 N. W. 366. In Marsh v. Groner, 258 Pa. 473, 478, 102 A. 127, L. R. A. 1918F, 213, the definition in Webster's dictionary is adopted; that is to say, business is defined as "some particular occupation or employment habitually engaged in for a livelihood or gain." Smith v. Anderson, L. R. 2 Ch. Div. 258; Gray v. Sedgwick County, 101 Kan. 195, 165 P. 867, L. R. A. 1918F, 182; State v. City of Lawrence, 101 Kan. 225, 165 P. 826.

Under this section it will be observed that, if a workman at the time of the injury is actually performing service for the alleged employer, so far as the burden of proof is concerned, the relationship of employer and employee is to be assumed. Section 69 is as follows:

"(a) Whenever this act, or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court with the purpose of extending the benefits of the act for the protection of persons injured in the course of their employment."

[5] Prior to the amendment of 1917 the burden was on the employee to show that he was not an independent contractor, and that the work performed arose out of and was in the course of his employer's business. But under section 19 (d) the burden is squarely placed on the employer to show either that the applicant was an independent contractor or that the work done by him was not in the course of the employer's trade, business, profession, or occupation; that is to say, it was incumbent on petitioner to establish by evidence either that the applicant was an independent contractor or that the casual repair of the roof made under the direction of the pastor, petitioner's appointee in charge of the chapel, was not in the course of his trade, business, profession, or occupation as an Archbishop, a corporation sole.

Petitioner contends that

"There is no need of taking judicial notice of any facts. The facts appear affirmatively and * * show that the Commission has no jurisdiction. *** There is absolutely no proof that the Archbishop has any business office, and, even if we assume that he has, there is an entire lack of proof that his business office had anything to do with this church. It does however, * * * that this In the state of the record we do not find appear affirmatively, it necessary to pass on the question whether its local priest, Father Bandini, and it was not work was being done by the local parish through the expression in section 8 (c), "business, busi- until this case was on rehearing before the ness premises or business property," would Industrial Accident Commission that the Archinclude "services tending toward the preser- bishop knew anything about it. The affairs vation, maintenance or operation" of church of the individual church are carried on by the property, or whether it is an "undertaking parishioners, and the Archbishop is not thereactually engaged in with some degree of reg-fore engaged in business merely because the ularity * * the principal business of parishioners in a certain parish desire to repair their church." the employer to the contrary notwithstandIng." The act as amended in 1917 also covered the rule of the burden of proof and the rule of liberal construction.

Section 19 (d) is as follows:

"The burden of proof lies upon the party holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof shall rest upon the employer to establish them: (1) That an injured person claiming to be an employee is an independent contractor or otherwise excluded from the protection of this act, where there is proof that such injured person was at the time of his injury actually performing service for the alleged employer."

Respondents contend that

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"This court knows through its judicial knowledge that petitioner is the local head of a religious institution of large magnitude. Title is in petitioner as corporation sole of a considerable number of buildings, grounds and establishments. The upkeep of all buildings within the diocese, used by the Catholic Church for religious purposes, involves business details and business practices of considerable extent, and places such matters of maintenance and upkeep in the same category as the management of investment properties. Petitioner maintains a business office to look after these business details."

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