Fidelity C. Co. v. Industrial Acc. Com. , 191 Cal. 404 ( 1923 )

Upon the hearing before the Industrial Accident Commission, respondent Mrs. Edwards, decedent's widow, testified that from the time he made the contract decedent operated exclusively under it; that he did not solicit or convey goods of any sort from any terminal other than that of Haydis and the Truck Owners and Shippers, Inc.; that the money for the freight decedent hauled was collected through Haydis' office and that from time to time decedent was paid money by Haydis; that decedent did not have anyone drive the truck for him after he entered into the agreement; that he drove to Los Angeles and back alone; that she did not remember of any representative of Haydis ever going with him; that "It was understood that he was not to carry anyone else, no one else was to go with him. I mean — as I understood it no insurance would be good in any way if there was anyone outside, or anyone else driving. That is one reason he never took me to Los Angeles"; that before decedent bought the truck he was not in the trucking business, but worked for a dairy. It was agreed upon the hearing that the services rendered were governed exclusively by the contract.

Petitioners emphasize the circumstances that decedent owned his own truck, took care of it himself, and paid for its upkeep; that Haydis exercised no control over the manner or method of hauling the freight; that decedent traveled alone and was his own master in operating the truck. Three cases are cited and especially relied upon as determining that under the facts shown decedent was an independent contractor. InWestern Indemnity Co. v. Pillsbury, 172 Cal. 807 [159. Pac. 721], one Stevens was engaged in "Teaming and Grading" and furnished teams, wagons, and drivers for hauling material, at the rate of six dollars a day for a team, wagon, and driver. His agreement with the hirer in question did not cover any definite period of time, nor designate the number of loads to be hauled, but it was agreed each wagon should work eight hours a day. The hirer's foreman gave directions in the matter of what materials should be hauled. Stevens drove one wagon himself and the money for all the drivers was paid to him, he in turn paying the others. It was held that as the contract was not for Stevens' personal services, but for teams, wagons, and drivers, and as the hirer only had a limited control over the work, Stevens was an independent contractor.

In Flickenger v. Industrial Acc. Com.,181 Cal. 425 [19 A. L. R. 1150, 184 P. 851], the decedent for whose death compensation was claimed was engaged in the "truck business," taking calls from the public at large. He was engaged to haul a quantity of hay for Flickenger. There was no definite agreement as to the time within which the work should be done or as to the price. The decedent suited his own convenience as to the manner and time of loading his truck, being expected merely to do a full day's work each day. He was held to be an independent contractor. In Hall v.Industrial Acc. Com., 57 Cal.App. 78 [206 P. 1014], the petitioner had a dairy in Lankershim and contracted with the injured party, Ramgren, who was engaged in the trucking business, to carry a quantity of milk to Los Angeles each day at a specified rate. This service did not prevent Ramgren from using any time not occupied in transporting the milk to do hauling for other persons. He paid for the upkeep of the truck, and if anything happened to it he was required to secure other means of transportation. The petitioner had no control over the route taken or the manner of operation of the truck. The court held Ramgren to be an independent contractor.

As stated in the main opinion, respondents contend the case presents a closer analogy to Eng-Skell Co. v.Industrial Acc. Com., 44 Cal.App. 210 [186 P. 163], and the late cases of Press Publishing Co. v.Industrial Acc. Com. and General Acc. etc.Corp. v. Industrial Acc. Com., 190 Cal. 114 [210 P. 820], wherein a single opinion was rendered. In the former case, in which a petition for a hearing in this court was denied, the Eng-Skell Company entered into an agreement in writing with one Rogers, who owned a truck, whereby the truck and driver were to be supplied to petitioner for the purposes of its business daily between the hours of 8 A. M. and 6 P. M., for a period of six months, for the sum of $1,050 for the entire term, payable in semi-monthly amounts of $87.50. Rogers was held to be an employee upon the grounds that the real arrangement between the parties was such that Rogers was himself to be the driver and was to give his personal services to the Eng-Skell Company; that in the course of such personal service he was not only to be the driver of the truck, but was to attend to all of the details incident to the delivery of the goods; that the service precluded the pursuit of any independent calling by him, and that in the use of the truck he was at all times under the control of the Eng-Skell Company. The relationship was held not to be affected by his use of his own automobile and his payment of its upkeep.

In the two latter cases the injured party was jointly engaged by a creamery and a newspaper, combining the work of going to a ranch in the country after cream and delivering papers along the way. The court held in both instances he was an employee, the control over his movements being found to exist potentially in the facts that in each case his duties were required to be finished by a certain time and that each hirer had the right to discharge him at any time. It was further held that he did not become an independent contractor because he owned and paid the upkeep of the motorcycle he used in the performance of his duties, nor because he incidentally carried packages for persons along his route, which in no way interfered with his regular work and was entirely subordinate to it.

This case is distinguishable in certain respects from the cases cited by petitioners. In each of those cases the injured party was engaged in an independent hauling business, and the work he was doing when injured was done in the course of that occupation. Although all his time might temporarily be devoted to one job, he was allowed to engage in other enterprises, and his service was not to be rendered exclusively to one party. InWestern Indemnity Co. v. Pillsbury, supra, the agreement was not even one for personal services. Here decedent conducted no general trucking business. He secured his truck in September and on the following October 2d entered into the contract, having before that time worked for a dairy. Under the contract he was to render nondelegable personal services exclusively to Haydis, being thus precluded from following an independent calling. The time during which the contract should extend was limited and a definite sum was guaranteed decedent, which was equivalent to no more than a promise of wages. Except for the provision that Haydis was to perform certain duties, decedent was required to attend to all the incidents of the transportation of the goods. In these particulars this case is almost identical with Eng-Skell Co. v. IndustrialAcc. Com., supra.

The fact that the parties provided for the contingency of an assignment of the contract by decedent might be claimed to indicate that they did not intend to establish the relation of employer and employee. But when the nature of the provision is considered, it is apparent it does not have that effect, for it is merely an agreement for an assignment with the consent of the hirer, such as would be implied by law even in the absence of any clause to that effect. It is well settled that when an agent assigns a contract without the consent of the principal the assignee takes merely an opportunity to offer himself to the principal as a substitute for the assignor (Boehm v. Spreckels, 183 Cal. 239 [191 P. 5]), but also that the burden of any contract may be assigned with the assent of the party entitled to the benefit. (Civ. Code, sec. 1457;Cutting Packing Co. v. Packers' Exchange,86 Cal. 574 [21 Am. St. Rep. 63, 10 L.R.A. 369, 25 P. 52].) I do not think the inclusion of this clause is determinative of the nature of the engagement.

The question of Haydis' control over decedent's conduct of the work remains to be considered. In Press PublishingCo. v. Industrial Acc. Com., supra, it was declared: "In the absence of any express terms affirming or negating the power of control and direction, its existence must be determined from the reasonable inferences to be drawn from all the circumstances surrounding and attending the making and execution of the contract considered in conjunction with the nature of the contract and the duties ordinarily to be performed thereunder." As already pointed out, the employers in that case were held to have control of the employee because the work was required to be finished by a definite time and because they retained the power to discharge him at any time. In Eng-Skell Co. v. IndustrialAcc. Com., supra, it was found the employer did actually control the movements of the employee. In this case Haydis engaged and employed decedent's services exclusively. The word "employ" has a definite legal meaning, and one of the elements involved in an employment is the employer's control over the employee. "While it is not "the name parties may give to their contract which determines its character" (Mebius Drescher Co. v. Mills, 150 Cal. 229 [88 P. 917]), "legal terms are to be given their legal meaning unless obviously used in a different sense" (Weinreich EstateCo. v. A. J. Johnston Co., 28 Cal.App. 144 [151 P. 667]).

As the contract in question contained no express reference to the subject of control, it might well be held that by the very use of the term "employs" it was intended Haydis should have control over the movements of decedent and that decedent was in fact to be his employee. Such a holding would settle the entire matter. But I am of the opinion it also appears from other facts that sufficient control was reserved to Haydis to constitute him an employer by the contract. Decedent was required to make a trip one way each twenty-four hours. He could not substitute another driver or another truck and thus could not use his own discretion as to the time or means of transportation. He had no discretion concerning the loading of the truck or the shipping; Haydis was to provide for this without regard to decedent. It was also provided that trip prices might be received, necessarily at Haydis' discretion, for he was to furnish the loads, and that in such an event the weight of the load should not affect the amount received by decedent.

The only matters over which Haydis apparently did not retain express control were as to what roads decedent should travel upon and in what; manner he should perform the acts required in operating the truck. What directions would a driver need more than were given to this one? That some control was actually exercised over the truck while it was being operated by decedent is shown by the testimony of respondent, Mrs. Edwards, that because no insurance would be good if anyone rode with decedent, it was understood he should not carry anyone else upon the truck. The control actually having been exercised, it is evident it was vested in Haydis, and the other elements of an employment being present, I am satisfied the finding that decedent was his employee is supported by the evidence and that the award should be affirmed.

Lennon, J., concurred.