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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 so to leave a clear field for Mr. Eubanks for the first day by carrying the "shingles up so his particular job. They volunteered to do they would be handy"; that the pastor did this, to tear off the old shingles, and Mr. not suggest how he was to do the shingling; Welsh showed up on the job Tuesday mornthat he was, to shingle the church in "the sing, or the day of the injury, and he unregular way"; that the pastor did not tell | dertook to take off some of the shingles"; him at which gauge to lay the shingles; that. that tearing off these old shingles was not in the ridge board and cross were to be fixed, the original agreement with applicant; that and that from another source, referring to he did not fire the first man, he simply quit Ed. Welsh, he got the information that the of his own accord because he could not do the cross was to be taken off and a new one put work; that he did not expressly reserve the on, but he expected the pastor to come to right to fire applicant at will; that he exLinden to tell him what to do about the ridge pected him to finish the job, but, if upon an board and the cross; that he would have occasion of visiting Linden in the next few stopped work if he was ready to fix the ridge days he had found him, instead of on the board and the cross if the pastor had not roof, playing checkers with the village blackcome; that when Ed. Welsh came on the smith, he might have felt himself entitled to first day to tear off the old shingles the ap. break the contract; that he would not have plicant told him it was a bad idea because it fired applicant if he were laying the shingles would leave part of the roof uncovered if improperly because he would not have known it rained, so he suggested that Ed. Welsh whether they were being laid correctly or might carry up the shingles, and that a car- not, and that when applicant suggested that penter works 542 days per week at the av- the shingles already on should be taken off erage pay of $8 per day.

and put on properly he said, “I noticed they The pastor testified: "I asked the state looked bad, but I thought that after all it employment bureau for a shingler, and the wouldn't matter, that very few tourists pass gentleman in charge told me after a few that way, and it would not matter to leave days that he had a man with this qualifica- the shingles as they were.” In support of the tion, so I went down and had a talk with additional finding on rehearing that the work Mr. Eubanks; I asked him if he would take

was casual, the following testimony appears: the job of reshingling the roof; he said he

G. A. Walker testified that he estimated had sufficient experience to handle it. I asked him, 'How much do you want? and he the job at $75; that it would take about said, '$1 per hour.' I told him this place 7 days to finish the work; and that it would

have taken a couple of hours to replace the was far removed from my headquarters or my residence, and I would leave him there, ridge board and the same length of time to

fix the cross.

William Hansen, the carpenand that he could come back to Stockton in ter who finished the job after applicant was the evening or stay there if he could find a injured, testified that it took two persons place. Nothing definite was said about his

212 days to complete the work, 1 hour to working 8 hours, or 10 hours, or 12 hours, fix the cross, 2 hours to take off the old shinonly I made it plain to him that he was at gles, and 2 hours to replace the ridge board, liberty to work as many hours as he wanted and that he and his assistant could each to at the price of $1 per hour.


lay about 6,000 shingles per day. was at Linden when Mr. Eubanks started

The petition for a writ of review is based work; I may have been around for a quarter upon the grounds that the award of the Comor half an hour, and I told him to go ahead, and I told him I would not see him for a few mission was without and in excess of its ju

risdiction, that the evidence does not supdays, that I had no occasion to go to Linden. I told him, 'If you want any money, I will port the award, and that the order and de

cision are unreasonable. It is contended that advance you some?"; that while the applicant the employment of applicant was casual, the was at the hospital after the accident he

cost of the work being under $100, and, the asked him if he needed any money, to which job being of less than 10 days' duration, that he replied, "No," and that, “I said I owed said employment was that of an independent him some money, and he said he worked 8 contractor, no direction as to the manner of hours and I gave him $8. Mr. Jeffry. Q. doing the work having been given and no reWas anything said by you to Mr. Eubanks striction upon him as to the time to work, about fixing the cross, or about other mat- and that “the casual repairing of the church ters? A. There was some trouble about how | building is not in the 'course of the business' the top of the roof should come together. of petitioner as that term is used in the The present arrangement seems to be old- Compensation Act,” the proof only showing fashioned. Now, there is another way, and that the title to the chapel is in the Roman I told Mr. Eubanks to go ahead and fix that Catholic Archbishop of San Francisco, a corand other little problems that would come up. poration sole, and that religious services peQ. What can you state about this man he culiar to the Roman Catholic denomination spoke of assisting him on that job? A. Mr. are had in the chapel, and there being no eviWelsh, and some other men of the parish, dence that such building is a business prop.


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

he was concerned he did not suppose he was 1. When the award was made against the doing the work independent of any control. pastor the Commission found that the serv. He understood the pastor was bossing the ices were not casual, and later, when the job, and expected to be given instructions proceeding was dismissed as to him and an as to what he should do with the cross and award made against petitioner, it was found the ridge board. The cases of Pryor v. Inthe services were casual. In view of this dustrial Accident Commission, 186 Cal. 169, and that the evidence is sufficient to sustain 198 P. 1045; Western Indemnity Co. v. Pillsthe latter finding it will not be necessary to bury, 172 Cal. 807, 159 P. 721; Fidelity & pursue the point further.

Deposit Co. v. Brush, 176 Cal. 448, 168 P. [1] 2. The next point is whether the ap- 890; and Connolly v. Industrial Accident Complicant was an independent contractor or an mission, 173 Cal. 405, 160 P. 239—are cited employee. It was held in Flickenger v. In to the point that in applying the test of condustrial Accident Commission, 181 Cal. 425, trol the distinction between an order and a 184 P. 851, 19 A. L. R. 1150, that the defini- suggestion is to be observed, and it is urged tion of an independent contractor contained that the foregoing testimony would not jusin the amendment of the act in 1917 (Stats. tify an inference that it was obligatory upon 1917, p. 831) did not restrict or enlarge the the applicant to follow directions. It is true meaning of the term; and hence the status it is not necessary to show that an independis determined by rules used before the cre- ent contractor has an office or business in ation of the Industrial Accident Commission which he hires assistants (Prince v. Schwartz, in ordinary actions at law.

190 App. Div. 820, 180 N. Y. S. 703), or that "Whether a workman is an employee within the work undertaken was within his calling the Workmen's Compensation Act or an in- (Roberts v. Industrial Accident Commission, dependent contractor is a question of fact | 52 Cal. App. 31, 197 P. 978, bearing in Suupon which the judgment of the Industrial Com- preme Court denied). The fact that the apmission is conclusive, where the facts are in plicant applied to an employment bureau for dispute, and becomes a question of law only work is some evidence he did not hold him. when but one inference can reasonably be self out as an independent contractor, but drawn from the facts." Federal Mining & Smelting Co. v. Thomas (Okl. Sup.) 225 P. was seeking employment as an employee, and 967.

this undisputed fact also tends to support

his testimony that he was under the control It was said in Western Pacific R, R, Co. and direction of the pastor in doing the work.

Industrial Accident Commission (Cal. {3} Any conflict in the testimony of the Sup.) 224 P. 754:

pastor and the applicant must be resolved on "It is the rule that where from the evidence the side of the findings. The testimony vatwo opposing inferences may be drawn, that ries in several particulars. For instance, the inference which is accepted by the Commission applicant stated he was employed by the day; must be sustained if there is evidence in the that he understood he could be discharged at record to support it and if it is a reasonable any time; and that the pastor was "bossing" inference to be drawn from that evidence. the job. The pastor, on the other hand, statEastman v. Industrial Accident Commission, 186 Cal. 587, 598, 200 P. 17; Polar Ice, etc.; ed that the applicant was to be paid by the Co. v. Mulray, 67 Ind. App. 270, 119 N. E.'149." hour; that he hired him for the job; that

he expected him to finish it: that he could See, also, Tartar v. Industrial Accident

work as many hours in the day as he chose : Commission (Cal. Sup.) 218 P. 39; Employ

that he did not understand he could disers' Liability Assurance Corp. v. Industrial charge the applicant; and that he told him Accident Commission, 182 Cal. 612, 187 P. 42. he could not be at the chapel while the shin{2} Upon the evidence above cited we can- rould not know how to direct the work of

gling was being done. He also stated he not escape the conclusion that the facts reasonably justify the finding that the applicant shingling, and that he made suggestions but was an employee. As to the material factor gave no orders. The finding of the Commisof control or power of control an inference sion cannot be disturbed. Dearborn v. Inthat the power to control was retained by 203 P. 112; Great Western Power Co. v.

dustrial Accident Commission, 187 Cal. 591. the pastor would find support in the evidence. The applicant testified he was told to do the 218 P. 1009; Myers v. Industrial Accident

Industrial Accident Commission (Cal. Sup.) work in "the regular way"; that he should Commission (Cal. Sup.) 218 P. 11. place the shingles at the top of the roof according to the modern method; and that he

3. The third contention of petitioner is should decide any little problems that came

thatup. When the applicant suggested that the that any business operation was carried on in

"There was absolutely no evidence to indicate shingles put on by his predecessor should be this church or that your petitioner carried on taken off and put on properly the pastor told any business of any character either in this him they should be left on; that it did not church or elsewhere. The only evidence is that matter if they were not placed correctly. the title of the church is held in the Romar. Ile also testified that he thought he might Catholic Archbishop of San Francisco, a corpo


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(230 P.) ration sole, and that religious services peculiar y employer with some degree of permanency. to the Catholic denomination are had 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 ed any exemption because of the religious is contended that the finding does not sup- character of petitioner's service to the comport the award because it does not state that munity, it would have conferred such exempthe church was operated as a business or tion in express language. Instead it has dethat the church building was a business fined, in section 8 (c) the term 'trade, business, premises or business property, and that the profession, or occupation' as including 'any evidence would not support such a finding if undertaking actually engaged in with some it had been made. It is also urged:

degree of regularity without limitation. "Certainly if the owning of property for in

The 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, reneva 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 esis of business as the term business' is understood. 'Business' applies in its very nature for a business activity. A church cannot car

is the renewing of the roof of the factory to a holding of oneself out for commercial transactions. Unless there is the commercial ele- ry on its professional services adequately ment involved, it is not what is ordinarily without buildings, and the upkeep, mainteknown as 'business.' * * * A church in which nance, and repair of such buildings is inci. no business is carried on is not a business dental to and a part of the carrying on of premises or property, and it was just such its professional activities." property that the Legislature intended to ex [4] It is admitted that an employment clude by providing that casual employees were must be both casual and not in the course of excluded unless they were doing work on busi

the business of the employer to be excluded ness premises or business property.”

under section 8 (c); that is, in order to deny Respondent contends that the terms trade, compensation, it is not sufficient to establish business, profession, or occupation of the em- the casual nature of the employment, but it ployer, as used in section 8 (c), are “to be must also he established that it is outside of given a broad significance. It is not limited the business of the employer. Maryland to business operation, in the sense of indus- Casualty Co. v. Pillsbury, 172 Cal. 748, 158 trial affairs or business conducted for pri- P. 1031; London & Lancashire Guarantee, vate profit.

The definition of the etc., Co. v. Industrial Accident Commission, term contained in section 8 (c) of the Com- 173 Cal. 642, 161 P. 2; Walker v. Industrial pensation Act also shows a very strong in- Accident Commission, 177 Cal. 737, 171 P. tent to give the term broader significance 954. L. R. A. 1917F, 212. than that of recognized industrial occupa

Section 8 (c) of the act is as follows: tions. The statutory definition extends the

The phrase "course of the trade, phrase to 'any undertaking

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 tending toward the preservation, maintenance

or operation of the business, business premises are to receive their compensation if injured or business property of the employer. in the ordinary course of operation of an en- words 'trade, business, profession or occupation

The terprise, occupation or profession, industrial of his employer shall be taken to include any or nonindustrial, actually carried on by the undertaking actually engaged in by him with

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some degree of regularity, the trade name, ar-, it was held that carpenter work on silos to ticles of incorporation or principal business of be used on a dairy farm is within the busithe employer to the contrary notwithstanding." ness of dairy farming; it being shown the

Prior to this amendment of the act in 1917 ) employers elected to bring themselves with. this state accepted the majority American in the act. In Rissman v. Industrial Acciview that neither construction nor repair dent Commission, 190 Cal. 619, 213 P. 991, work is in the course of an employer's busi- it was conceded by the parties and found by ness unless he has made it so by customarily the Commission that the renovating of two engaging in such work. Maryland Casualty houses for the purposes of sale was not in Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031; the employers' business. Dearborn v. IndusLa Grande Laundry Co. v. Pillsbury, 173 trial Accident Commission, 187 Cal. 591, 203 Cal. 777, 161 P. 988; Walker v. Industrial P. 112, involved a job of carpentry in the Accident Commission, 177 Cal. 737, 171 P. erection of a dwelling house for the occu954, 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; question whether the accident arose out of Marsh v. Groner, 258 Pa. 473, 102 A. '127, and was in the course of the owner's busiL. R. A. 1918F, 213; Adam v. Musson, 37 ness, which was that of farming, is not disIll. App. 501; State ex rel. Lennon v. Discussed in the opinion, although the Commis. trict Court of Douglas County, 138 Minn. sion found in favor of the owner on those 103, 164 N. W. 366; Solomon v. Bonis, 181 points. The award was based on the ground App. Div. 672, 167 N. Y. S. 676; Geller v.

the work was not casual. According to two Republic Novelty Works, 180 App. Div. 762, other decisions (Lauzier v. Industrial Acci168 N. Y. S. 263. We cite the following ad-. dent Commission, 43 Cal. App. 725, 185 P. judications by the Commission: Trenholm v. 870, and Ford v. Industrial Accident ComHough, 1 Cal. I. A. C. Dec. 260; Castellotti mission, 53 Cal. App. 542, 200 P. 667) the makv. McDonnell, 1 Cal. I. A. C. Dec. 351; Au- ing of repairs necessary and incidental to the gustine v. Cotter, 2 Cal. I. A. C. Dec. 59; upkeep of four small frame houses, in the Brockman v. Sheridan, 2 Cal. I. A, C, Dec. one case, and a flat in the other, which the 986; Sutton v. Rabinowitz, 5 Cal. I. A. C. owners let for hire, is not a business withDec. 29. In Holbrook v. Olympia Hotel Co., in the contemplation of the Compensation supra, it was held that, if the owner of a

Act. hotel occasionally employs some one to paint

We have examined the law in other jurisand decorate the rooms, such work would dictions with reference to the question not come within the meaning of the word whether the trade, business, profession, or "business” in the Compensation Act, though occupation includes charitable, educational, it is usual to have work of that nature religious, philanthropic, or eleemosynary indone from time to time. Even in the acts stitutions, and have found that in most of which classify the employments as hazard- the compensation acts such institutions are ous, and include therein the construction, re- not in terms expressly excluded from the pair, or demolition of buildings, if the em- operation thereof. There are only two, howployer does not carry on any such occupation, ever, Illinois and Pennsylvania, which exbut incidentally employs some one to do that pressly include such institutions. Rev. Stats. kind of work, he will not be liable, though 11. 1917, p. 1450; Pa. Laws, 1915, p. 736. the incidental work is performed on premis. On the other hand, the states of Idaho and es where a hazardous business is carried on. Georgia expressly exclude charitable organBargey v. Massaro Macaroni Co., 218 N. Y. izations and institutions from the operation 410, 113 N. E. 407: Uphoff v. Ind. Bd., 271 of their respective acts. Ga. Laws 1920, p. III, 312, 111 N. E. 128, L. R. A. 1916E, 329, 167; Idaho Laws, 1917, c. 81, $ 3. A numAnn, Cas. 1917D, 1. But, if the employer ber of the acts are elective, and include withcustomarily does the necessary repairs and in their operation only those employments in alterations by a staff of carpenters regularly which from 3 to 16 employees are regularly employed for that purpose by a department employed. It may be that in states where store whose business is not classified as haz- the number of employees determines whether ardous, he is held to be carrying on a haz- the employer comes within the act nonprofit ardous business as a part of his principal organizations, if employing the statutory business. Alterman v. A. I. Namm & Son, number, would not be excluded. The indus190 App. Div. 76, 179 N, Y, S. 581.

tries 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, 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 employCommission, 45 Cal. App. 328, 187 P. 452, ment only in a trade, business, or occupation


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(230 P.) carried on by the employer for pecuniary Under this section it will be observed that, gain, and the West Virginia act provides that if a workman at the time of the injury is all persons, firms, associations, and corpora actually performing service for the alleged tions regularly employing other persons for employer, so far as the burden of proof is profit, or for the purpose of carrying on any concerned, the relationship of employer and form of industry or business, are employers. employee is to be assumed. In Roberts v. Ottawa, 101 Kan. 228, 165 P. Section 69 is as follows: 869, it was held that a city constructing a

“(a) Whenever this act, or any part or secs sewer, not being engaged in a gainful enter- tion thereof, is interpreted by a court, it shall prise, is not within the Kansas act. In Mul- be liberally construed by such court with the len v. Little, 186 App. Div. 169, 173 N. Y. S. purpose of extending the benefits of the act for 578, it was held that the harvesting of ice the protection of persons injured in the course by a farmer for farm purposes, and not as of their employment.” a business or for pecuniary gain, is not within the act of that state. The term "gain [5] Prior to the amendment of 1917 the or profit," as used in the statutes, means pe- burden was on the employee to show that he cuniary gain. Ray V. School District of was not an independent contractor, and that Lincoln (1920) 105 Neb. 456, 181 N. W. 140; the work performed arose out of and was Allen v. State, 173 App. Div. 455, 160 N. Y. in the course of his employer's business. But S. 85; Redfern v. Eby, 102 Kan. 484, 170 P. under section 19 (d) the burden is squarely 800; Gray v. Sedgwick County, 101 Kan. placed on the employer to show either that 195, 165 P. 867, L. R. A. 1918T, 182. The the applicant was an independent contractor word "business" is held to have a popular or that the work done by him was not in the meaning, and a permanent and regular oc- course of the employer's trade, business, procupation whose sole object is gain will not fession, or occupation; that is to say, it was be regarded as “business," unless it is popu- incumbent on petitioner to establish by evilarly so regarded. Bargewell v. Daniels. 98 dence either that the applicant was an inL. T. 257 : Kelly v. Buchanan, 13 Compensa- dependent contractor or that the casual retion L. R. 729; McCain v. McDonnell, note pair of the roof made under the direction to Kelly v. •Buchanan, supra; State ex rel. of the pastor, petitioner's appointee in charge Lennon v. District Court of Douglas County, of the chapel, was not in the course of his 138 Minn. 103, 164 N. W. 366. In Marsh v. trade, business, profession, or occupation as Groner, 258 Pa. 473, 478, 102 A. 127, L. R. A. an Archbishop, a corporation sole. 1918F, 213, the definition in Webster's dic Petitioner contends thattionary is adopted; that is to say, business

"There is no need of taking judicial notice of is defined as "some particular occupation or employment habitually engaged in for a live any facts. The facts appear affirmatively and

* show that the Commission has no julihood or gain.” Smith v. Anderson, L. R. risdiction. * * * There is absolutely no proof 2 Ch. Diy. 258; Gray v. Sedgwick County, that the Archbishop has any business Office, 101 Kan. 195, 165 P. 867, L. R. A. 1918F, and, even if we assume that he has, there is 182; State v. City of Lawrence, 101 Kan. an entire lack of proof that his business office 225, 165 P. 826.

had anything to do with this church. It does

* that this In the state of the record we do not find appear affirmatively, however, * *

work was being done by the local parish through
it necessary to pass on the question whether its local priest, Father Bandini, and it was not
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 Arch-
include "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 there-
actually engaged in with some degree of reg- fore engaged in business merely because the
the principal business of parishioners in a certain parish dasire to re-

pair their church."
the employer to the contrary notwithstand-
Ing." The act as amended in 1917 also cov-

Respondents contend that-
ered the rule of the burden of proof and the
rule of liberal construction.

“This court knows through its judicial knowlSection 19 (d) is as follows:

edge that petitioner is the local head of a re

ligious institution of large magnitude. Title is "The burden of proof lies upon the party in petitioner as corporation sole of a considerholding the affirmative of the issue. The fol- able number of buildings, grounds and establowing are affirmative defenses, and the burden lishments. * * The upkeep of all buildings of proof shall rest upon the employer to es- within the diocese, used by the Catholic Church tablish them: (1) That an injured person for religious purposes, involves business details claiming to be an employee is an independent and business practices of considerable extent, contractor or otherwise excluded from the pro- and places such matters of maintenance and tection of this act, where there is proof that upkeep in the same category as the management such injured person was at the time of his in- of investment properties. Petitioner maintains jury actually performing service for the alleged a business office to look after these business employer."


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