Opinion
Rehearing Denied Feb. 7, 1930
Hearing Granted by Supreme Court March 20, 1930
Proceeding under Workmen’s Compensation Act by John Swanson, employee, opposed by R.D. Lacoe, employer. The Industrial Accident Commission of the Division of Industrial Accidents and Safety, Department of Industrial Relations, granted an award, and employer applies for certiorari.
Award annulled. COUNSEL
Sweet & Plank, of San Diego, for petitioner.
Edward O. Allen and G.C. Faulkner, both of San Francisco, for respondents.
OPINION
CONREY, P.J.
John Swanson presented to the Industrial Accident Commission his application for an award of compensation for disability resulting from an injury received by him while working as an employee of R.D. Lacoe. Compensation having been allowed, the employer now seeks to have the award annulled.
The award should be sustained unless the evidence fails to show that the injury was received while rendering service in an employment coming within the scope of the compensatory provisions of the Workmen’s Compensation, Insurance, and Safety Act of 1917 (St.1917, p. 831). According to section 8(a) of this act, the definition of the word "employee" as used therein excludes "any person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer"; and also excludes "any employee engaged in household domestic service, farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising." In George v. Industrial Accident Commission, 178 Cal. 733, 174 P. 653, the applicant George was employed as janitor and gardener at a school for girls which was conducted by the employer. The employee was injured while trimming an acacia tree adjacent to the school building. It was held that George’s employment was dual in character, and that, in so far as he acted as a gardener, his work was horticultural and beyond the purview of the Compensation Act. No question relating to domestic service was included in that case.
Section 70 of the Compensation Act provides for a procedure whereby an employer and employee may by their joint election bring within the compensation provisions any excluded employment. The provisions of section 70 and of section 8(a), to which we have referred, were part of the Compensation Act as enacted in the year 1917 and have not been amended, except as those provisions are affected by the statute next herein mentioned. By statute enacted in the year 1927, a rule of presumption was created, with reference to all of the excluded employments hereinabove mentioned, other than "household domestic service." St.1927, p. 1681. Section 1 of this act reads as follows: "Any employer and his employees engaged in farm, dairy, agricultural, viticultural or horticultural employments or in stock or poultry raising, not subject to the compensation provisions of the ‘workmen’s compensation, insurance and safety act of 1917,’ as amended, shall, from and after the date this act takes effect, be conclusively presumed to have accepted the compensation provisions of said act and amendments thereto and to have included in their contract of hire or apprenticeship, express or implied, a mutual agreement to accept said provisions, unless either such employer or employee shall, prior to the occurrence of any injury have given notice of rejection of said provisions of said act in the manner herein provided." The remaining sections refer to the manner of giving notice of rejection or of making withdrawal of such notice.
In the case at bar it does not appear that the employer and employee, or either of them, ever made any election of the kind referred to in section 70 of the Compensation Act or gave any notice of rejection in accordance with said act of 1927.
The evidence shows that Lacoe was the owner of a 30-acre tract of land in San Diego county. On this land there was a family residence, and at a short distance therefrom a small house for employees. He lived in San Diego and kept this country place for part time residence and recreation. Part of the land was used for agricultural purposes, the actual work being done by a neighboring farmer who worked the land on "shares." The house and garden were, therefore, in their use distinctly separate from the leased land. In May, 1928, Lacoe and his wife sold their house in the city and decided to move out to this ranch, but not remain there all of the time. They therefore planned "to put a man and his wife on the place to keep the place going and when we would come there it would be running, and the table run, and everything." It was under these circumstances that Swanson and his wife were employed, with the understanding that Mrs. Swanson would attend to the housework and that Swanson would perform other services. We are now concerned only with the nature of the employment in respect to Swanson. After he had been there a few days he received an injury by falling out of a tree into which he had climbed for the purpose of cutting off a limb of the tree. The location of the tree was about 150 feet from Lacoe’s house. It was not claimed by the employee that he received any direct instruction to trim this tree or that he was doing this work with knowledge of the employer. His contention was that the work was within the scope of his employment, and that the nature of the employment, including this work, was such that the disability resulting from the injury is compensable. In the testimony of Swanson, in answer to a question as to the kind of arrangement under which he was working he said: "My duties were to do farm work, put in the crop when it was the season, and do garden work, and carpenter work which was specified, and that was what I had been doing mostly, carpenter work and trimming trees and taking care of horses *** during the six days that I had worked I had been doing carpenter work mostly." Again: "Q. Your duties were to do all things necessary about the home of Mr. Lacoe, which was on this ranch, that were necessary for the care and upkeep of his place? Your wife doing some of the inside and you doing the work on the outside? Ans. I think so."
We think that the decision of this case depends upon the answer to one question. At the time of the accident in which Swanson was injured was he an employee "engaged in household domestic service?" We are of the opinion that he was so engaged. One may be engaged in employment pertaining to the household without being strictly a house servant. This particular question does not appear to have been answered in any of the decisions in this state. The cases mentioned in the brief for petitioner are in harmony with our view as above stated. The cases referred to by counsel for respondent commission do not meet the point or discuss the nature or limitations of household domestic service. In Catto v. Plant, 106 Conn. 236, 137 A. 764, the Supreme Court of Connecticut discussed some of the leading English and American cases bearing upon the definition of the term "domestic servant." The court then said (page 766 of 137 A.): "Without *** attempting to formulate a definition which would be applicable to all cases, we think it may be said that ordinarily a domestic servant is one whose service is connected with the maintenance of the house and land connected with it and constituting the establishment of his employer in such a way that his work and duties, whether in or outside the house, have to do with the running of the establishment or estate in providing for and ministering to the wants and comforts of the members of his employer’s household." The court further refers to an old English case in which it was held that a head gardener was a household servant. The Connecticut court further said: "Here plaintiff lived and worked in the domain of this country estate, and the services he performed were rendered in and for the household of the master of the domain and quite distinct, as it seems to us, from services rendered by an employee or laborer upon a farm or any other enterprise conducted apart from the household of the employer." In the case at bar, the employee was performing service pertaining to the maintenance of the household, or premises, constituting the family home; not service pertaining to the operation of the farm. He was injured while doing work of the household. We think that this was "household domestic service," within the meaning of those words as used in the Compensation Act.
The award is annulled.
I concur: YORK, J.
HOUSER, J.
I dissent. I am not in accord with the conclusion that a man is a household domestic servant whose duties are "to do farm work, put in the crop (on 30 acres of land) *** do garden work, and carpenter work, *** trimming trees, and taking care of horses." That sort of employment would appear to be the common, every day work of the ordinary ranch hand on a comparatively small place.
On concededly substantial evidence adduced at the hearing, the commission found that the "applicant while employed *** as a gardener *** sustained injury arising out of and in the course of said employment. ***" There was no finding that the employee was ever engaged in "household domestic service," as such.
In the case of George v. Industrial Accident Commission, 178 Cal. 733, 174 P. 653, 654, it was held that one might be employed in a dual capacity— that of janitor and that of gardener; that "in so far as he acted as a gardener his work was horticultural, ***" and that "whether or not George [the employee] at the time of his injury, was engaged in horticultural labor was a question of fact to be determined by the commission. Its finding thereon, if supported by any rational view of the evidence, is beyond review here." To the same effect, as to the conclusiveness on this court of a finding of fact by the commission that in the instant case the employee was a gardener (and consequently engaged in horticultural work), see 27 Cal.Jur. 578, and cases there cited; also, note in the supplement to the same work, p. 1619.
By the provision of section 1 of the Statutes of 1927, p. 1681, "any employer and his employees engaged in *** horticultural employments *** shall *** be conclusively presumed to have accepted the compensation provisions" of the Workmen’s Compensation, Insurance, and Safety Act. It would seem to follow that the applicant before the respondent commission was entitled to be compensated for the injury received by him.