California Employment Commission v. Los Angeles Down Town Shopping News Corp.

150 P.2d 186, 24 Cal. 2d 421, 1944 Cal. LEXIS 245
CourtCalifornia Supreme Court
DecidedJuly 5, 1944
DocketL. A. No. 18660
StatusPublished
Cited by41 cases

This text of 150 P.2d 186 (California Employment Commission v. Los Angeles Down Town Shopping News Corp.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
California Employment Commission v. Los Angeles Down Town Shopping News Corp., 150 P.2d 186, 24 Cal. 2d 421, 1944 Cal. LEXIS 245 (Cal. 1944).

Opinions

EDMONDS, J.

Los Angeles Down Town Shopping News, owned by the appellant corporation, is a publication devoted to the advertising of retail merchants. It has no subscribers but, without charge, regularly on Wednesday and Saturday of each week, carriers leave a paper at each dwelling house within certain designated territories. The Employment Com[423]*423mission (formerly the Unemployment Reserves Commission) has ruled that these carriers are employees within the meaning of the Unemployment Insurance Act (formerly the Unemployment Reserves Act, Stats. 1935, chap. 325, p. 1226, as amended; Deering’s Gen. Laws, 1935 Supp., Act 8780d, as amended) and sued the publisher for the amount assertedly due as contributions to the unemployment fund. The corporation's appeal is from a judgment in favor of the commission.

The paper has been published since 1922, and at the date • of the trial was distributed by about 1,000 boys, selected by the corporation, more than 90 per cent of whom were under 18 years of age. They had no written contract but were assigned to specific routes under an oral agreement terminable at the will of either the publisher or the carrier. Each boy was required to obtain a work permit from the school authorities. Compensation ranged from $2.00 to $2.50 per week, depending upon the route to which the boy was assigned.

The distribution area was divided into districts, each in charge of a manager responsible to the publisher’s circulation manager. Reporting to the district manager were inspectors, each having approximately 10 routes under his jurisdiction. The inspector supervised the delivery of the paper by the carriers and required compliance with the rules and instruction of the publisher. Since 1938 there have been junior inspectors to assist in directing the delivery system.

The publisher’s truck delivered the papers to specified places, where each carrier checked in with his junior inspector and received his allotment with a Shopping News bag. The boy was required to walk the route and could not use skates, a bicycle or other means of conveyance. The delivery rules specified how the paper should be placed at each residence and the boys were instructed not to walk on lawns, or in flower beds. They were permitted to have one helper, approved by the Shopping News. Bach boy was required to complete the delivery of the papers on his route by 8 a. m. on Wednesdays and 9 a. m. on Saturdays. He then reported whether he was short or over in the number of papers delivered. The inspectors cheeked all complaints made regarding the manner in which papers were delivered and the boys were subject to dismissal for failure to comply with the publisher’s instructions.

[424]*424Upon these facts, the superior court found that Los Angeles Down Town Shopping News Corporation had the right of potential and actual control over the carriers as to the manner and means of the performance of their work in connection with the distribution and delivery of the Shopping News and other advertising matter which was from time to time delivered by them. These carriers were not independent contractors, the court declared, and it concluded that the publisher was an employer within the meaning of the Unemployment Insurance Act, supra, and subject to its provisions during the years 1936, 1937 and 1938. Judgment accordingly was rendered in favor of the commission in the amount payable for the period not barred by the statute of limitations. (Code Civ. Proc., § 338.)

The appellant contends that the carrier boys were independent contractors and not in “employment” within the meaning of section 6.5 of the Unemployment Insurance Act, supra. And the term “employment” as used in that statute, says the publisher, must be read with the same meaning which it had generally under the law of California at the time the unemployment legislation was adopted. But if the boys were in “employment,” the argument continues, the act is inapplicable to them because the express terms used by the Legislature evidence an intention to exclude from the operation of the enactment persons earning less than the minimum amount entitling them to benefits under its provisions, and particularly to school boys earning “pocket money” through part time employment. The commission takes the position that the act not only includes the persons who are employers or employees, as judicially defined at the time the act became effective, but also those in “any relationship where the income of an individual is dependent upon the will of another. ’ ’ If the act is limited in its application to the employer-employee relationship, the commission declares, the finding of the trial court, that such relationship existed should be sustained and the judgment affirmed upon the ground that the carriers in “employment” under the act received remuneration which constituted “taxable wages.”

An independent contractor is a person who is engaged in an independent employment or occupation, responsible to his principal only for the result and not for the manner or means by which it is accomplished. (Moody v. Industrial Acc. [425]*425Com., 204 Cal. 668 [269 P. 542, 60 A.L.R 299].) In determining whether an individual is an employee or an independent contractor, the most important factor is the right to control the manner and means of accomplishing the result desired. If the employer has the power to exercise complete control, whether or not that potential control is exercised with respect to all details, an employer-employee relationship exists. (S. A. Gerrard Co. v. Industrial Acc. Com., 17 Cal.2d 411 [110 P.2d 377]; Murray v. Industrial Acc. Com., 216 Cal. 340 [14 P.2d 301]; Moody v. Industrial Acc. Com., supra; Hillen v. Industrial Acc. Com., 199 Cal. 577 [250 P. 570]; Press Publishing Co. v. Industrial Acc. Com., 190 Cal. 114 [210 P. 820] ; Claremont Country Club v. Industrial Acc. Com., 174 Cal. 395 [163 P. 209, L.R.A. 1918F 177]; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407 [156 P. 491, Ann. Cas. 1917E 390]; Rest. Agency, § 2.) And strong evidence of the employer’s control is his right to discharge at will, without cause. (Globe Indemnity Co. v. Industrial Acc. Com., 208 Cal. 715 [284 P. 661]; Press Publishing Co. v. Industrial Acc. Com., supra; Melone v. Industrial Acc. Com., 9 Cal.App.2d 569 [50 P.2d 503]; Call Publishing Co. v. Industrial Acc. Com., 89 Cal.App. 194 [264 P. 300].)

In the present ease there is substantial evidence to support the findings of the trial court that the boys were employees within the meaning of the Unemployment Insurance Act, supra. As defined by that statute, the term “employment” means “service . . . performed for wages or under any contract of hire, written or oral, express or implied.” (§ 6.5, as amended in 1937.) The testimony clearly shows that the publisher of Shopping News had the right to entirely control the manner and time of its distribution.

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Bluebook (online)
150 P.2d 186, 24 Cal. 2d 421, 1944 Cal. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/california-employment-commission-v-los-angeles-down-town-shopping-news-cal-1944.