Opinion
Rehearing Denied April 29, 1931
Hearing Granted by Supreme Court May 28, 1931
Proceeding under the Workmen’s Compensation Act by Ben Simons, alleged employee, opposed by Earl La Franchi, employer, and the Employers’ Liability Assurance Corporation, Limited, insurer. To review an award of the Industrial Accident Commission in favor of alleged employee, the employer and insurer apply for a writ of review.
Award annulled.
COUNSEL
Redman, Alexander & Bacon and R.P. Wisecarver, all of San Francisco, for petitioners.
A.I. Townsend, of San Francisco, for respondents.
OPINION
Mr. PLUMMER Justice.
Application for writ of review by petitioners seeking to have set aside an award made by the Industrial Accident Commission in favor of the respondent Ben Simons.
This cause was twice heard by the commission. Upon the first hearing the commission denied compensation. Upon rehearing an award was made in favor of the respondent Simons. Only one question is tendered for our consideration, to wit, Was the relationship between the petitioner Earl La Franchi and the respondent Ben Simons one of employer and employee, or was Ben Simons an independent contractor?
The record before us shows that for some time previous to the occurrences involved in this proceeding the respondent Ben Simons had been engaged in chopping wood for the petitioner Earl La Franchi, as an independent contractor. At about the time of the completion of the wood-chopping contract it appears that the petitioner La Franchi and respondent Simons entered into an agreement relative to the picking up of brush or limbs resulting from the pruning of a pear orchard owned by La Franchi. Concerning the arrangement for picking up brush, the respondent Simons testified as follows:
"He told me at first— I went and said, ‘Mr. La Franchi, will you give me that job picking up that brush?’ And he said, ‘Yes, I will give it to you by the job.’ And I said, ‘What will you give me?’ And he said, ‘What do you want?’ And I said, ‘Two cents a tree.’ And he said, ‘No, that is too much, but,’ he said, ‘what I will do is to give you $30 to do the job.’ And I said. ‘Well, I don’t know, but I will try it.’ And he said, ‘I will see that you make your wages out of it.’
"Q. He said he would give you $30 for the job?
A. Yes, sir.
"Q. And you could make— he would see that you made wages out of it?
A. Yes.
"Q. What did you understand he meant by that?
A. Meant that if I fell down on $30 he would pay me more— that was my understanding— he always has been good, and he generally does that way, too; he always treated me like that.
"Q. Well, now, were you the only one that worked on this?
A. Me and my two boys. They were going to school and I thought they could help me pick it up; they could pick up the brush faster than I could.
"Q. How long did you figure it would take you to complete that job?
A. I thought we could get it done in about a couple of weeks.
"Q. Now, did Mr. La Franchi come out and give you any instructions?
A. Nothing, only he told me to pile the brush— they pile it this way first— and he told me to pile it this way— so they could throw it in the brush-burner much handier. He said not to mind picking up every little limb; he said a few little limbs under the trees did not make any difference, and to leave them."
In relation to the contract for picking up the brush, La Franchi testified as follows:
"Q. You have a ranch here in the vicinity of Ukiah?
A. I rent a ranch.
"Q. Do you recall that Mr. Ben Simons was working for you on or about May 6, 1930?
A. Yes, sir.
"Q. He was working on your place picking brush?
A. Yes, sir.
"Q. And will you tell us what you recall with reference to how he happened to go to work?
A. He came up out of work, and he had those children, and he said he was out of work and he had to have some money to live on. I didn’t exactly need him at the time, but told him I would help him out. He cut wood at first, then he picked up the brush.
"Q. With reference to picking up the brush, what were you going to pay him?
A. $30.
"Q. What is your recollection of your conversation about that?
A. I asked him what he would take to pick up the brush. I think he said $60, and I said no, I would not pay him $60; I could not afford to do that because that was as much as it cost me to do the pruning, so I said I would give him $30 to pick up the brush.
"Q. Did you make any statement other than the $30?
A. Well, I told him I would see he would make wages out of it. I figured at $30 he would make wages out of it.
"Q. Did you go out to see how the work was going on?
A. I told him only once how to do it, how I wanted it done.
"Q. And how was that?
A. How to pick it up and where to put it; I told him how I wanted it picked up so it would be easier to burn.
"Q. You paid him $30 when the job was completed?
A. Yes.
"Q. Did you figure he made wages?
A. I asked him if he was satisfied, and he said yes."
There was further testimony to the effect that Simons could have employed others to help him had he so wished, and that he did have his two boys help him in picking up the brush. Both Simons and La Franchi were questioned as to their understanding of what would have been the result of a dissatisfaction with the way the work was done, or the termination of the contract. The testimony of Simons as to this question is as follows:
"Q. Did you consider that Mr. La Franchi could have come down to the orchard and told you to stop that work and not go ahead?
A. He could have if he had a mind to.
"Q. What would you have collected from him then?
A. Just collected from the time I had worked, I suppose, but I don’t know if I could have anything more or not."
As to the same matter, La Franchi testified as follows:
"Q. Did you understand that you could go down, and that you could have stopped or discharged Simons from that job, say, if he was not satisfactory, if you had wanted to for any reason?
A. Well, I don’t know whether I could or not, as long as the job was the way I wanted it done.
"Q. Suppose you had gone out there in the orchard after he was working for a couple of days, and decided the job was not being done right. Do you feel you could have told Simons to stop work?
A. Yes, sir.
"Q. What would you have paid him if you had done that?
A. I would have to use my own judgment, but I figure I would have paid him according to what he had earned.
"Q. Mr. Simons has testified today that his hours were his own; he could go on the job when he wanted to and leave it when he wanted to. Is that correct?
A. Yes, sir.
"Q. Suppose he had worked there one day, and then taken a couple of days off, then come back the third day. Would that have been satisfactory?
A. Satisfactory as long as he got it picked up in time.
"Q. How soon did you want it picked up?
A. So I could get in there to plow. There was no special date made.
"Q. When did you have to get in there to plow, with reference to the time he was picking up the brush?
A. Oh, I guess I had two months from the time he started picking up before I went in there and plowed."
The record further shows that Simons’ name was not carried on the pay roll kept by Mr. La Franchi, with reference to men employed by him; that Simons had his own time, could come and go as he wished; that the only directions which La Franchi gave to Simons with reference to the brush was to pile it straight and not sidewise, or in a direction so the wind would not blow it. The record further shows that La Franchi visited the orchard only a limited number of times during the progress of the work, and gave no further directions.
There was a discussion at the time the contract was made as to how the brush should be picked up and removed from the orchard. As just stated, Simons had two months within which to get the work done. During the course of picking up the brush Simons received an injury to one of his eyes, for which compensation was awarded. The fact of the injury and the compensation awarded, not being an issue before us, we need not give further attention thereto.
The record would indicate that both Simons and La Franchi agree that Simons was injured while in the performance of his duties as an independent contractor; that Simons was to receive $30 for the job; that he was free to work without any direction or control on the part of La Franchi. The record further shows that Simons did complete the work without any direction or control, and received the amount of the agreed compensation, to wit, $30. According to the testimony, Simons had his two boys help him in picking up the brush, because they could work faster than he could; that La Franchi did not pay the boys; that the $30 was paid for the job, and whatever compensation the boys received, if any, was paid to them by Simons.
Counsel, for respondents lays considerable stress upon the answers of both La Franchi and Simons as to what would have been the result, or rather as to their ideas of what would have been the result, in the event of any dissatisfaction or disagreement arising between them relative to the manner in which the work was being performed, and what their ideas were as to their respective rights and liabilities in the event of what we may call a rescission of the contract on the part of La Franchi or a refusal to complete the same on the part of Simons. We do not very well see how their conclusions as to their rights and responsibilities can change the nature of the relationship in this cause. If the contract were doubtful in its terms, and if it did not show upon its face that Simons was taking the contract as an independent contractor to perform a certain piece of work upon his own time without direction or control, and with the power to employ assistance if he so desired, then and in that case perhaps the understanding of the parties as to their legal liabilities might have some weight. In this case the testimony of both Simons and La Franchi coincide as to the agreement, and meet the requirements of the Workmen’s Compensation Act (St.1917, p. 831, as amended) that the burden is cast upon the petitioner in this action, to establish the relationship of Simons as an independent contractor, and that such relationship clearly conforms to the definition of such relationship as found in Fidelity & Casualty Co. of New York v. Industrial Accident Commission of California, 191 Cal. 404, 216 P. 578, 579, 43 A.L.R. 1304, where it is said: "In determining in any given case whether a person was an employee or an independent contractor there are usually present various circumstances which are persuasive to one conclusion and other circumstances persuasive to the opposite conclusion. But an analysis of the cases makes it plain that the determinative factor is usually found in the solution of the question: Who has the power of control, not as to the result of the work only, but as to the means and method by which such result is accomplished?
In Luckie v. Diamond Coal Co., 41 Cal.App. at page 480, 183 P. 178, 183, after an extensive review of the cases, the court said: "The accepted doctrine is that, where the essential object of the employment is the performance of work, the relation of master and servant does not exist unless the employer retains the right to direct the mode and manner in which the job shall be done; or, in other words, not only what shall be done, but how it shall be done. Labatt’s Master and Servant, § 64; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721. ‘The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.’ Green v. Soule, 145 Cal. 96, 99, 78 P. 337, 339. He is deemed to be the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work, but in all the details. The legal test for the determination of the question is stated by Thompson as follows: ‘An independent contractor, within the meaning of this rule, is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.’ " In the instant case all the details of the work, time, etc., were left, by the agreement, to Simons, and Simons was representing the will of his employer only as to the result of the work.
In Moody v. Industrial Accident Commission, 204 Cal. 668, 269 P. 542, 543, 60 A.L.R. 299, after defining what constitutes an independent contractor and citing the cases to which we have referred, it is said: "It is well settled that, where one person is performing work in which another is beneficially interested, the latter may exercise over the former a certain measure of control for a definite and restricted purpose, without incurring the responsibilities, or acquiring the immunities, of a master, with respect to the person controlled." The circumstances of this case are similar to the facts involved in the case of Provensano & New Amsterdam Casualty Co. v. Division of Industrial Accidents, etc., et al. (Cal.App.) 294 P. 71, where it was held that the party performing the work, in that case, wood chopping, was an independent contractor.
The facts of the instant case are readily distinguishable from the facts involved in the case of Hillen v. Industrial Accident Commission, 199 Cal. 577, 250 P. 570, upon which the respondents rely. In the Hillen Case all that was involved, really, was the manner of figuring the compensation for the employment. There is no difference as to whether wages are paid by the day or by the piece, as the wages may be measured by the time or by the piece, as the parties may agree upon. This was in fact all that was involved in the Hillen Case. There was really no question under the facts, that the relationship of employer and employee existed. The same is true in relation to the case of Helmuth v. Industrial Accident Commission, 59 Cal.App. 160, 210 P. 428, in which case the workman was paid so much for each hole blasted. It was there held that the method of computing the compensation to be paid did not show a relationship other than that of employer and employee.
Another case relied upon by the respondents is that of Globe Indemnity Co. v. Industrial Accident Commission, 208 Cal. 715, 284 P. 661. An examination of the facts set forth in the opinion, however, shows that the real question involved was as to whether the injury occurred in the course of employment.
The facts set forth in the opinion in the case of Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820, are likewise readily distinguishable from those involved in the instant case. In the Press Case the right of control and direction was in the employer.
The facts in the case at bar show that Simons contracted for a specified recompense to produce a specified result, according to his own way and at his own time, accountable only to his principal for the result of the work, which we think brings the case squarely within the decision not only of the cases which we have cited, but also of that of Flickenger et al. v. Industrial Accident Commission, 181 Cal. 425, 184 P. 851, 19 A.L.R. 1150, where a large number of cases are collected and commented upon.
We think the facts set forth in the record from which we have quoted, and the cases which we have cited, leaves only one conclusion, to wit, that Ben Simons was an independent contractor.
The award is annulled.