SCHAUER, J.
Defendants appeal from a judgment entered pursuant to a jury verdict for plaintiff. The plaintiff’s factual theory of this action for damages for personal injuries, as alleged in the complaint, is that “defendants employed plaintiff as a ranch and farm laborer . . . ; that among his duties plaintiff was required to and did operate ... a certain tractor; that said tractor was in need of repairs and was in a dangerous and defective condition . . . That the' dangerous and defective condition of said tractor . . . was well known to defendants, but defendants failed, refused and neglected to have the same repaired and put in a safe condition to be operated; that on the contrary defendants directed that plaintiff manage and operate the same in its dangerous and defective condition”; and that plaintiff, while operating the tractor, was injured as the result of such condition. The evidence adduced at the trial is in sharp conflict as to whether plaintiff’s injuries were caused by negligence of defendants and as to whether plaintiff was guilty of contributory negligence. It is impossible to determine whether the jury’s resolution of this conflict in plaintiff’s favor is based upon inapplicable instructions, given at plaintiff’s request, that “it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence,” and that “It is not a defense to the employer that the employee was guilty of contributory negligence.” We have concluded that, in the circumstances hereinafter more fully explained, the judgment must be reversed.
[123]*123The Labor Code (divs. Ill and IV) gives certain advantages, not available to the plaintiff in an ordinary tort action based upon negligence, to an employe who, either because his employer has not provided security for the payment of workmen’s compensation where such security is required by the Workmen’s Compensation Act (Lab. Code, div. IV) can sue at law for damages for personal injury sustained in the course of his employment, or who is entitled to sue because his employment is not covered by the act. The advantages provided by division IV (Workmen’s Compensation Act) to the employe whose employer is required to, but has failed to, secure the payment of workmen’s compensation are greater than those to the employe whose employment is within the provisions of division III of the Labor Code but is not within the provisions of division IV. As to employes within the act, section 3706 of the Labor Code (div. IV) provides, “If any employer [who is liable for compensation under the terms of the act] fails to secure the payment of compensation, any injured employee . . . may bring an action at law against such employer for damages, as if this division [IV] did not apply.” Furthermore, section 3708 (div. IV) provides, “In such action it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence ...”
As above indicated, there are also certain advantages given to an employe who brings suit for personal injuries against an employer where the employment is not within the terms of the Workmen’s Compensation Act and the employer, accordingly, is not required to secure the payment of workmen’s compensation. The provisions of division III of the Labor Code, which create and define these advantages, are “fully operative and effective in all cases where the provisions of Division IV are not applicable.” (Lab. Code, § 2700.) As previously suggested, the burden upon the employer whose liability is under division III is substantially less severe than that upon one who has wrongfully failed to secure payment of compensation. The applicable provisions of division III do not place upon the employer the burden of proving his freedom from negligence. Furthermore, the defense of contributory negligence is not abolished; rather, it is qualified and limited. Specifically, section 2801 (div. Ill) of the [124]*124Labor Code provides that “the fact that such [negligently injured] employee has been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee. It shall be conclusively presumed that such employee was not guilty of contributory negligence in any ease where the violation of any law enacted for the safety of employees contributed to such employee’s injury.”
At the time plaintiff was injured, defendant had not secured the payment of workmen’s compensation. Plaintiff commenced this action upon the theory that the parties came within the provisions of the Workmen’s Compensation Act (Lab. Code, div. IV). At the trial, however, it developed that defendants were not within the compensation provisions of the act. Section 3352 of the Labor Code (div. IV) provides that “ ‘Employee’ excludes . . . (b) Any person employed in farm . . . labor . . . where the compensation provisions of this division [IV] are rejected, or do not apply, in accordance with Chapter 9 of this part.” Chapter 9 (div. IV, § 4250) provides, “Any person engaged in farm . . . employments . . . and those employed by him who are not subject to the compensation provisions of this division are . . . conclusively presumed to have accepted the compensation provisions of this division . . . , unless either the person employing or the person employed, has given . . . notice of rejection of such compensation provisions. This section shall not apply to any person, or to those employed by him, whose pay roll for the preceding calendar year has not exceeded five hundred dollars.” (Italics added.) According to undisputed evidence the total amount paid as wages to employes on defendants’ ranch (which defendants had owned for less than one month during the calendar year preceding the date of plaintiff’s injury) was $319.50. Therefore, defendants’ liability, if any, is not under the Workmen’s Compensation Act (div. IV) but under division III of the Labor Code. However, the question whether defendants’ liability, if any, was under division III or division IV of the Labor Code was improperly submitted to the jury as a question of fact, and the jury were instructed not only as to the pertinent provisions of division III but also, at plaintiff’s request, as to many totally inapplicable'provisions of division IV, including those of section 3708 above quoted. The task of a jury of laymen to compre[125]*125hend and apply pertinent instructions is onerous enough at best; it should not be unnecessarily aggravated by loading on them a congeries of wholly inapplicable legal propositions. Such wholly inapplicable propositions should not be requested by counsel, in the first place, but if requested, it is the duty of the trial judge to scrupulously delete them from the charge finally given.1
Plaintiff, over objection, was allowed to prove that defendants, during the calendar year preceding the date of plaintiff’s injury, paid $759 to a firm of “contractors in the land leveling business” for the leveling of the field. Defendants showed, by uncontradicted testimony of a member of the firm and of defendant J. L.
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SCHAUER, J.
Defendants appeal from a judgment entered pursuant to a jury verdict for plaintiff. The plaintiff’s factual theory of this action for damages for personal injuries, as alleged in the complaint, is that “defendants employed plaintiff as a ranch and farm laborer . . . ; that among his duties plaintiff was required to and did operate ... a certain tractor; that said tractor was in need of repairs and was in a dangerous and defective condition . . . That the' dangerous and defective condition of said tractor . . . was well known to defendants, but defendants failed, refused and neglected to have the same repaired and put in a safe condition to be operated; that on the contrary defendants directed that plaintiff manage and operate the same in its dangerous and defective condition”; and that plaintiff, while operating the tractor, was injured as the result of such condition. The evidence adduced at the trial is in sharp conflict as to whether plaintiff’s injuries were caused by negligence of defendants and as to whether plaintiff was guilty of contributory negligence. It is impossible to determine whether the jury’s resolution of this conflict in plaintiff’s favor is based upon inapplicable instructions, given at plaintiff’s request, that “it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence,” and that “It is not a defense to the employer that the employee was guilty of contributory negligence.” We have concluded that, in the circumstances hereinafter more fully explained, the judgment must be reversed.
[123]*123The Labor Code (divs. Ill and IV) gives certain advantages, not available to the plaintiff in an ordinary tort action based upon negligence, to an employe who, either because his employer has not provided security for the payment of workmen’s compensation where such security is required by the Workmen’s Compensation Act (Lab. Code, div. IV) can sue at law for damages for personal injury sustained in the course of his employment, or who is entitled to sue because his employment is not covered by the act. The advantages provided by division IV (Workmen’s Compensation Act) to the employe whose employer is required to, but has failed to, secure the payment of workmen’s compensation are greater than those to the employe whose employment is within the provisions of division III of the Labor Code but is not within the provisions of division IV. As to employes within the act, section 3706 of the Labor Code (div. IV) provides, “If any employer [who is liable for compensation under the terms of the act] fails to secure the payment of compensation, any injured employee . . . may bring an action at law against such employer for damages, as if this division [IV] did not apply.” Furthermore, section 3708 (div. IV) provides, “In such action it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence ...”
As above indicated, there are also certain advantages given to an employe who brings suit for personal injuries against an employer where the employment is not within the terms of the Workmen’s Compensation Act and the employer, accordingly, is not required to secure the payment of workmen’s compensation. The provisions of division III of the Labor Code, which create and define these advantages, are “fully operative and effective in all cases where the provisions of Division IV are not applicable.” (Lab. Code, § 2700.) As previously suggested, the burden upon the employer whose liability is under division III is substantially less severe than that upon one who has wrongfully failed to secure payment of compensation. The applicable provisions of division III do not place upon the employer the burden of proving his freedom from negligence. Furthermore, the defense of contributory negligence is not abolished; rather, it is qualified and limited. Specifically, section 2801 (div. Ill) of the [124]*124Labor Code provides that “the fact that such [negligently injured] employee has been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee. It shall be conclusively presumed that such employee was not guilty of contributory negligence in any ease where the violation of any law enacted for the safety of employees contributed to such employee’s injury.”
At the time plaintiff was injured, defendant had not secured the payment of workmen’s compensation. Plaintiff commenced this action upon the theory that the parties came within the provisions of the Workmen’s Compensation Act (Lab. Code, div. IV). At the trial, however, it developed that defendants were not within the compensation provisions of the act. Section 3352 of the Labor Code (div. IV) provides that “ ‘Employee’ excludes . . . (b) Any person employed in farm . . . labor . . . where the compensation provisions of this division [IV] are rejected, or do not apply, in accordance with Chapter 9 of this part.” Chapter 9 (div. IV, § 4250) provides, “Any person engaged in farm . . . employments . . . and those employed by him who are not subject to the compensation provisions of this division are . . . conclusively presumed to have accepted the compensation provisions of this division . . . , unless either the person employing or the person employed, has given . . . notice of rejection of such compensation provisions. This section shall not apply to any person, or to those employed by him, whose pay roll for the preceding calendar year has not exceeded five hundred dollars.” (Italics added.) According to undisputed evidence the total amount paid as wages to employes on defendants’ ranch (which defendants had owned for less than one month during the calendar year preceding the date of plaintiff’s injury) was $319.50. Therefore, defendants’ liability, if any, is not under the Workmen’s Compensation Act (div. IV) but under division III of the Labor Code. However, the question whether defendants’ liability, if any, was under division III or division IV of the Labor Code was improperly submitted to the jury as a question of fact, and the jury were instructed not only as to the pertinent provisions of division III but also, at plaintiff’s request, as to many totally inapplicable'provisions of division IV, including those of section 3708 above quoted. The task of a jury of laymen to compre[125]*125hend and apply pertinent instructions is onerous enough at best; it should not be unnecessarily aggravated by loading on them a congeries of wholly inapplicable legal propositions. Such wholly inapplicable propositions should not be requested by counsel, in the first place, but if requested, it is the duty of the trial judge to scrupulously delete them from the charge finally given.1
Plaintiff, over objection, was allowed to prove that defendants, during the calendar year preceding the date of plaintiff’s injury, paid $759 to a firm of “contractors in the land leveling business” for the leveling of the field. Defendants showed, by uncontradicted testimony of a member of the firm and of defendant J. L. Bratlie, that the sum was paid to the firm for a specified result and that the result contracted for was accomplished by the firm’s furnishing a tractor, drag [126]*126and scraper, together with an operator employed, paid and controlled by the firm and not by defendants; there is no suggestion that defendants had or exercised any control over the acts of the operator. The payment of $759, therefore, was made to an independent contractor, not to an employe. (Burlingham v. Gray (1943), 22 Cal.2d 87, 99-100 [137 P.2d 9]; Riskin v. Industrial Acc. Com. (1943), 23 Cal.2d 248, [127]*127253-254 [144 P.2d 16].) There is no evidence of any substantiality which could support a finding that the firm which graded defendants’ field, or the firm’s employe, was an employe of defendants. Of course, where there is any real conflict in the evidence the finding of the trier of fact is conclusive. But the trier of fact is not entitled, arbitrarily or upon mere caprice, to disregard uncontradicted, entirely probable testimony of unimpeached witnesses. Adapting the [128]*128language of Perguica v. Industrial Acc. Com. (1947), 29 Cal.2d 857, 859 [179 P.2d 812], to the present situation, ‘‘Generally speaking, it is a question of fact to be determined by the [trier of fact], from the evidence adduced, whether the essential employer-employee relationship exists (Riskin v. Industrial Acc. Com., 23 Cal.2d 248, 255 [144 P.2d 16]), and the finding on that issue will not be disturbed where it is supported by substantial evidence. (S. A. Gerrard Co. v. Industrial Acc. Com., 17 Cal.2d 411, 414 [110 P.2d 377].) But ‘if from all the facts only a single inference and one eon[129]*129clusion may be drawn, whether one be an employee or an independent contractor is a question of law.’ (Baugh v. Rogers, 24 Cal.2d 200, 206 [148 P.2d 633, 152 A.L.R. 1043]; Yucaipa Farmers etc. Assn. v. Industrial Acc. Com., 55 Cal.App.2d 234, 238 [130 P.2d 146]; see, also, Burlingham v. Gray, 22 Cal.2d 87, 100 [137 P.2d 9].) Here any reasonable view of the evidence on the issue of [the contracting firm’s] status compels the conclusion that [defendants] met their burden of proving that [the firm] was an independent contractor (Lab. Code, § 5707 (a)), and that the [jury’s verdict, possibly] based on a contrary finding is not sustainable. [Citations.]”
Under no circumstances would rental for equipment constitute a payroll charge; neither would a fee paid to an independent contractor. Nevertheless, the evidence of the payment of $759 went to the jury as if it were for them to determine whether, as a matter of fact, it was or was not a part of defendants’payroll. It does not appear that the Legislature in section 4250 of the Labor Code used the term “pay roll” in some unusual sense rather than in the ordinary sense of amounts due or expended for wages of employes. When the courts of this state have used the term, whether in connection with section 4250 or otherwise, it has been in such ordinary sense. (Earl Ranch, Ltd. v. Industrial Acc. Com. (1935), 4 Cal.2d 767, 768 [53 P.2d 154]; MacGruer v. Fidelity [130]*130& Casualty Co. (1928), 89 Cal.App. 227, 229 [264 P. 501] ; Beisigl v. Industrial Acc. Com. (1935), 9 Cal.App.2d 739, 743 [51 P.2d 153].) Neither reason nor authority supports the view for which plaintiff contends in his brief: That “the test [of whether an expenditure is part of an employer’s pay roll] is whether or not the expenditure was necessary, reasonable and in the usual course of farming operations. ’ ’ The specific exception of employers whose payrolls have been less than $500 from the requirement that employers either insure or expressly reject the provisions of the Workmen’s Compensation Act is manifestly intended to relieve from such obligation farmers who have had in their employ, under circumstances which would otherwise fall within the compensation provisions of the act, only a few employes for only short periods of time. As for the procedure adopted on the trial of this case—the submission to the jury of the question of defendants' duty to insure or expressly reject the provisions of the act—the legislative classification based upon a $500 payroll would be uncertain of application and virtually meaningless in legal significance if it depended in each case upon a jury’s determination as to whether expenditures other than sums paid to employes as wages were or were not a part of the employer’s payroll.
The only instruction as to the effect of the evidence of payment of $759 to the independent contractor was given at the request of plaintiff. It reads, “You are instructed that payroll is defined in Webster’s Unabridged Dictionary as follows: ‘A row [sic] or list of persons entitled to payment, with the amounts due.’ ” In the circumstances the giving of this instruction may well have aggravated the error in submitting such evidence for the jury’s consideration; if the jury gave the instruction any meaning they may have concluded that, because the contractor was “entitled to payment” for bringing about the result which it had undertaken to produce, such payment was a part of defendants’ payroll. This erroneous conclusion would lead the jury to the further deduction, also erroneous, that defendants, as employers whose payroll for the calendar year preceding the date of plaintiff’s injury exceeded $500, were required to secure the payment of workmen’s compensation. Since it is undisputed that defendants did not secure the payment of such compensation, the jury would then follow the inapplicable instruction, in the language of section 3708 of the Labor Code, as to burden of [131]*131proof and the defense of contributory negligence, rather than the applicable instructions which placed the burden of proof of negligence on plaintiff and correctly advised the jury, in accord with section 2801 of such code, as to the defense of contributory negligence.
Inasmuch as it is impossible to determine whether the jury, in weighing the sharply conflicting evidence as to the negligence of defendants and of plaintiff, followed the inapplicable instruction in the words of section 3708 of the Labor Code, the giving of such instruction constituted prejudicial error. The situation is like that in Barrett v. Southern Pac. Co. (1929), 207 Cal. 154, 165 [277 P. 481]; that is, “It is impossible from the record to determine upon which of the two theories the jury found the defendant guilty of negligence. Some of them may have found against the defendant on the one and erroneous theory and the remaining jurors may have reached the same conclusion on the other theory. It cannot be said that the same verdict would have been reached if the jury had been correctly instructed. Under such circumstances the erroneous instruction was prejudicial. (See Ginochio v. San Francisco, 194 Cal. 159 [228 P. 428] ; 24 Cal.Jur. p: 864, and cases cited [particularly Wallis v. Southern Pac. Co. (1921), 184 Cal. 662, 672 [195 P. 408, 15 A.L.R. 117]].) ”
For the reasons above stated the judgment is reversed.
Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.