Opinion
Docket No. S.F. 15251.
December 20, 1934.
PROCEEDING to review an order of the Industrial Accident Commission awarding compensation for death. Affirmed.
The petitioner sought to review an order of the Industrial Accident Commission awarding compensation for the death of Emil A. Bohm as the result of an automobile accident. Five months before his death, decedent had purchased from a third party an agency for delivery of "The San Francisco Examiner" in the territory adjacent to and including San Bruno, Lomita Park and Tanforan Race Track, and had paid therefor $450, and after his death his widow sold the agency for the same amount. Decedent had no written contract with the publishers, although he gave a bond to the Examiner Printing Company to guarantee payment of the wholesale price of papers delivered to him. Under this agreement he paid a flat price for the papers which were then delivered by him to newsboys employed by him, to stores, news-stands and other persons and firms with whom he had established contact in said territory.
In order to obtain earlier delivery of Sunday editions than could be had by using the public carriers, decedent made arrangements to drive in his car to San Francisco on Saturday afternoons, secure the papers and deliver them to his newsboys on his return. By a separate contract the Hearst Publications, Inc., or the Examiner Printing Company, publisher of said newspaper, employed decedent to deliver a certain number of copies of said Sunday editions to another agent at South San Francisco by a stated hour each Saturday afternoon, which delivery he was to make while returning to San Bruno to make delivery of his own papers. For this service he was to receive $1.25 for each delivery. The accident which resulted in his death occurred while he was returning on a Saturday afternoon with a load of papers, but before he reached the place where he was to deliver the Sunday edition to said other agent. The commission found that decedent "while employed in transporting newspapers from San Francisco to South San Francisco and San Bruno, California, by the Hearst Publications, Inc., and/or Examiner Printing Company, sustained injuries arising out of and in the course of his employment".
On November 22, 1934, the Supreme Court denied the application of petitioner, without opinion, and on December 20, 1934, the Supreme Court, in denying a petition for a rehearing, rendered the opinion which appears below.
B.E. Pemberton, Edmund D. Leonard and Ivan A. Schwab for Petitioner.
John Francis Neylan, Grove J. Fink and John B. Connolly, as Amici Curiae on Behalf of Petitioner.
Everett A. Corten, Emmet J. Seawell and Paul C. Dana for Respondents.
THE COURT.
[1] The petition for rehearing herein is denied, for the reason that the deceased employee, at the time of his death, was performing duties arising out of a special employment; and that such special employment was distinct from his ordinary activities, in which he was an independent contractor.