Opinion
Rehearing Granted Jan. 26, 1931.
In Bank.
Proceeding under the Workmen’s Compensation Act by Claude Eustace, employee, opposed by the Los Angeles Evening Herald and another, employers, and the New York Indemnity Company and another, insurance carriers. To review an award of compensation by the Industrial Accident Commission, the insurance carriers bring certiorari.
Award affirmed.
Superseding opinion in 287 P. 368. COUNSEL
E. Herbert Herlihy and F. George Herlihy, both of Los Angeles, for petitioners.
Edward O. Allen, of San Francisco, for respondent Industrial Accident Commission.
Flint & MacKay and Edward L. Compton, all of Los Angeles, for respondent Evening Herald Pub. Co.
OPINION
PER CURIAM.
Petition to review and annul an award of the Industrial Accident Commission in favor of the respondent Claude Eustace. This respondent, a man of 34 years, was engaged in selling Los Angeles Evening Heralds and Los Angeles Records on the streets of the city of Los Angeles. He was injured while in the act of selling a paper to a customer who had hailed him from a passing automobile.
No question is raised as to the correctness of any finding made by the commission except the finding that the vending on the streets of Los Angeles of these newspapers by the applicant. Claude Eustace, constituted him a compensable employee of the respective publishers thereof, the respondents Los Angeles Evening Herald and Los Angeles Record Publishing Company. The review on this ground alone is asked by the petitioners, who are the insurance carriers for the lastnamed respondents.
It becomes necessary, in accordance with well-established rules, to determine whether there is any substantial evidence to support the finding of the commission that the applicant was an employee of the newspaper publishers, for, if he was an employee, he is concededly entitled to compensation. If, however, the evidence is capable of but one inference, viz. that the injured man was an independent contractor, as contended by the petitioners herein, he is not entitled to compensation.
Eustace is one of a number engaged in the same occupation in Los Angeles under circumstances similar to those here presented. The undisputed evidence, in substance, is that both the Heralds and the Records were delivered to persons usually called newsboys, of whom Eustace was one, by a district manager, who acted as the representative of both publishing companies in the distribution of the newspapers to the newsboys in his district. The newsboys paid 2 cents each for the Heralds, which were sold by them at a price fixed by the publishers thereof. The newsboys paid $1.25 per hundred for the Records, which they sold also at a fixed price. Eustace took from the district manager a specified number, 130, of Heralds per day, but received as few or as many Records as he wished. Unsold Heralds were not returnable, but credit was given by the district manager for Records returned. The papers were paid for by the newsboys when they received them, or they were charged with the number taken and payment was made at the end of the day. Eustace was not carried on the pay roll of either publisher, and received no salary or reward directly from them. His compensation consisted in the difference between the cost of the papers to him and the price he was permitted by the publishers to charge the public as purchasers.
Although there is some dispute in the testimony as to just what control or regulation was exercised over the newsboys by the district manager, nevertheless the following conclusions of fact are supported by testimony in the record, some of which was elicited from conceded employees of the publishing companies: That specified ‘corners’ were alloted to the applicants therefor, who received instructions not to interfere with or sell at another newsboy’s corner; that in order to retain his selling station at the corner allotted to him, a newsboy was required to be a ‘hustler’ and sell a prescribed possible minimum of Heralds for that corner, otherwise his corner was given to another newsboy and he was refused further copies of that paper by the district manager. If copies were distributed for sale to newsboys who were not allotted a corner, they were instructed to sell only between corners and not to interfere with any occupied corner. The circulation manager of the Herald testified that it was one of the duties of the district manager, who is admittedly an employee of both publishers, to try to keep peace among the boys, and that some regulation was enforced as to the stations which the boys were to occupy in vending the papers, that the district manager had personal supervision of the newsboys, and that it was the duty of the district manager to see that all of the territory in his district was covered by newsboys so that the greatest possible number of copies each day would be sold. The question before us is not whether this court would have arrived at the same conclusion as that reached by the commission, but whether the evidence reasonably justifies the inference drawn by the Commission that the newsboys were employees entitled to the benefits of the act. We cannot escape the conclusion that the evidence was sufficient to justify the commission in concluding that such a system of distribution was established and such an organization built up to effect control of those selected to aid in obtaining the largest possible circulation by the particular means employed as to amount in effect to a complete exercise or retention of control of the activities of the newsboys to the end that the desired result be accomplished and thus satisfy the tests laid down in well-known cases. Globe Ind. Co. v. Ind. Acc. Comm., 208 Cal. 715, 284 P. 661; Moody v. Industrial Acc. Comm., 204 Cal. 668, 269 P. 542, 60 A. L. R. 299; Hillen v. Ind. Acc. Comm., 199 Cal. 577, 581, 582, 250 P. 570; Archbishop v. Ind. Acc. Comm., 194 Cal. 660, 230 P. 1; Brown v. Ind. Acc. Comm., 174 Cal. 457, 163 P. 664; Western Ind. Co. v. Pillsbury, 172 Cal. 807, 159 P. 721; Ocean Acc., etc., Corp. v. Ind. Acc. Comm., 87 Cal.App. 290, 262 P. 38. That being so, that court is powerless to set aside the finding of the commission that Eustace was as employee entitled to compensation. Hillen v. Ind. Acc. Comm., supra, page 580 of 199 Cal., 250 P. 570; Archbishop v. Ind. Acc. Comm., supra; Western P. R. R. Co. v. Ind. Acc. Comm., 193 Cal. 413, 224 P. 754; Tartar v. Ind. Acc. Comm., 191 Cal. 703, 218 P. 39; Employers’ L. A. Corp. v. Ind. Acc. Comm., 922 Cal.App. 119, 267 P. 922; Ocean Acc., etc., Corp. v. Ind. Acc. Comm., supra. It cannot therefore be said as a matter of law that the inference drawn by the commission is not supported by the evidence or that it is so unreasonable as to be an act in excess of the commission’s jurisdiction. It was said in Hillen v. Industrial Accident Commission, 199 Cal. 577, at page 580, 250 P. 570, 571, citing Eastman Co. v. Ind. Acc. Comm., 186 Cal. 587, 598, 200 P. 17: ‘Unless there is such an entire absence of evidence in the record as to render the finding unreasonable, or in excess of the powers of the commission, the court is not empowered to set it aside.’ The fact that the newsboys are not paid a salary or wages, but depend upon the number of sales made for any return for their efforts is immaterial, if other necessary elements be present. Globe Indemnity Co. v. Ind. Acc. Comm., 208 Cal. 715, 284 P. 661; Hillen v. Ind. Acc. Comm., 199 Cal. 577, 581, 250 P. 570. Neither are we convinced that there is any merit in the argument that the newsboys are not performing a ‘personal’ service. It must be obvious that any salesman who is hired to vend his employer’s product, provided the evidence sufficiently supports the conclusion that the elements of control are present, is performing a personal service. See Easton v. Ind. Acc. Comm., 34 Cal.App. 321, 167 P. 288. The petitioners’ claim that the facts present no more than a case of the purchase of a certain number of papers at wholesale for sale at retail is not supported by the record. The petitioners have not met the burden placed upon them by section 8(b) of the Workmen’s Compensation, Insurance and Safety Act (St. 1917, p. 835) of overcoming the presumption that the applicant is an employee entitled to the benefit of the act. See York Junction T. & S. Co. v. Ind. Acc. Comm., 202 Cal. 517, 261 P. 704; Montezuma Mt. School v. Ind. Acc. Comm., 201 Cal. 603, 258 P. 84; Hillen v. Ind. Acc. Comm., supra; Employers’ L. A. Corp. v. Ind. Acc. Comm., supra.
We must therefore conclude on the present record that the system instituted and the organization established for the purpose of supervising and directing the largest distribution and sale of their papers on the streets by the class of news vendors involved herein justified the commission’s conclusion that the petitioners’ assured retained such powers of control over the class of newsboys so drawn into that system and organization as to characterize them employees within the meaning of the Workmen’s Compensation, Insurance and Safety Act.
The award is affirmed.