Pacific Employers Insurance v. Department of Industrial Relations , 91 Cal. App. 577 ( 1928 )

SHAW, J., pro tem.

This is a proceeding by the petitioner to review an order of the Industrial Accident Commission, which, under the present law dividing the functions of the state government into various departments, is a part of the Department of Industrial Relations. Petitioner is the insurance carrier of Delsie L. Isley, and an award was made against it on account of injuries sustained by one Ralph R. Powell while engaged in wrecking a barn and while in the employ of said Delsie L. Isley.

From the evidence before the Commission, it appears that the said Delsie L. Isley was the owner of two trucks, and was engaged in the general trucking and hauling business under the name of “Isley Transfer.” This business seems to have been entirely conducted and managed by her husband, Everett Isley, and the business is usually referred to in the record as his business; in fact, the evidence shows but little connection of Delsie L. Isley with the business, except that she was the owner of the trucks used therein, but as petitioner concedes that the evidence is sufficient to show that Powell was in her employ, no discussion of it from this standpoint is necessary. The scope of the business, as stated by Everett Isley, was that he hauled “anything at all.” He also said that he had engaged in one other wrecking job about three or four months previous to the wrecking of the barn, but that his wife had no interest at all in that job. Powell, who was the only other witness on this point, stated that the principal business of the Isley Transfer was hauling all kinds of stuff, general hauling or draying, and that to his knowledge “Mr. Isley” had moved buildings before.

Everett Isley learned that certain contractors for whom he was doing hauling had for sale a house and a barn. Desiring to provide himself and Delsie L. Isley with a place of abode, he bought this house and barn and paid for them by a credit on his wife’s account with the contractors. He had the house moved upon a lot, which had already been bought for residential purposes in the name of his wife; and as soon as the house was moved and made ready he and his wife began living in it. He proceeded to wreck the barn and haul the materials composing it to this same lot. Part of these materials were used in repairing the house after it had been moved. It was his original intention to use the remainder thereof in building a garage on this lot, but this purpose was abandoned and the surplus materials were sold.

Powell was engaged in tearing the barn apart, and in the course of that work received the injuries for which the award was made. He was engaged by Everett Isley a short time before these injuries were received under an employment by which he was promised steady work when there was any work to be done, and was to work at anything Isley had to do and to be paid fifty cents an hour. After doing a couple of jobs of hauling, he was set by Isley at the work of tearing down the barn, doing no hauling in connection with it, and worked a little less than two days thereat before he was injured. After the materials of the barn were taken apart they were hauled to the lot above mentioned by Everett Isley himself, from time to time, as he had a little leisure from other jobs. There were three men altogether working at the wrecking of the barn, who were each paid four dollars per day, and the testimony is undisputed that they could complete the job in not more than five days at a labor cost of not more than sixty dollars.

The Industrial Accident Commission found that the applicant, Powell, was employed by Delsie L. Isley and not by Everett Isley, and that “the work in which applicant was engaged at the time of said injury was connected with the regular business of the employer and was not casual. ’ ’ There were, of course, other findings to which it is unnecessary to refer.

Petitioner -claims that there is no evidence on which the findings above quoted as to the nature of the work may be based, and that this finding does not cover the whole issue. The solution of the problems presented by this claim depends upon the following provisions of section 8 of the Workmen’s Compensation Insurance and Safety Act of 1917 (Stats. 1917, p. 835): “(a) The term ‘employee’ . . . shall be construed to mean: Every person in the service of an employer as defined by section seven hereof . . . excluding any person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer, . . . (c) The term ‘casual’ as used in this section shall be taken to refer only to employments where the work contemplated is to be completed in not exceeding ten working days, without regard to the number of men employed, and where the total labor cost of such work is less than one hundred dollars. 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.” There can be no doubt that Powell’s employment on the barn-wrecking job was casual, as that term is defined in the statute above quoted. The work contemplated on that job was to be completed in less than ten working days at a total labor cost of less than one hundred dollars. We do not think the situation is altered in this respect by the fact that he was under a general engagement to work for Isley. The wrecking of the barn was a separate and independent piece of work which Powell undertook in response to a specific order from Isley, and it must be considered by itself in determining whether it was casual. (Rissman v. Industrial Acc. Com., 190 Cal. 619 [213 Pac. 991].)

The question remains whether Powell’s work on the barn was “not in the course of the trade, business, profession or occupation of his employer.” Petitioner contends that the finding of the Commission that the work “was connected with the regular business of the employer” does not meet the issue on this matter, and its argument has much force, but we need not determine the point, because we think the finding, even if sufficient in form, finds no support in the evidence. The employer, it must be remembered, was Delsie L. Isley. Her business, according to all the evidence, was trucking and hauling. No other evidence was needed to show that it did not include the wrecking of buildings. While Everett Isley testified that he had previously wrecked one building, he also said that his wife had no interest in that job, and, hence, it cannot be used to amplify the scope of her business. Under the peculiar circumstances of the case, perhaps Powell’s testimony that “Mr. Isley” had moved buildings before can be construed to refer to something done by him in carrying on the business of Delsie L. Isley, but if so, it covers merely the moving, not the wrecking, of buildings. There is nothing to show that Delsie I. Isley had engaged with some or any degree of regularity in the wrecking of buildings. Neither was Powell’s service one tending toward the preservation, maintenance, or operation of the trucking business, or of the business premises or business property used in such business. The respondent suggests that it might be so classified because Everett Isley intended to use a part of the materials taken from the barn in building a garage; but there is no direct testimony as to the purpose for which that garage was to be used, and the inference from the fact that it was to be placed on the lot where Mr. and Mrs. Isley had their residence—nothing else appears as a basis for any inference—would be that it was to be used for some purpose connected with their residence and not with the business. In fact, a part of the lumber was used in repairing the dwelling-house and the remainder was sold, and neither of these operations was in the course of any business carried on by Delsie L. Isley.

The petitioner also contends that the work in question was not covered by the insurance policy which it had issued to Delsie L. Isley, but in view of our conclusion on the point already discussed, it is not necessary to pass upon this contention.

The award is annulled.

Conrey, P. J., and Houser, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 26, 1928, and the following opinion then rendered thereon: