Perguica v. Industrial Accident Commission

179 P.2d 812, 29 Cal. 2d 857, 1947 Cal. LEXIS 275
CourtCalifornia Supreme Court
DecidedApril 1, 1947
DocketSac. 5826
StatusPublished
Cited by31 cases

This text of 179 P.2d 812 (Perguica v. Industrial Accident Commission) 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
Perguica v. Industrial Accident Commission, 179 P.2d 812, 29 Cal. 2d 857, 1947 Cal. LEXIS 275 (Cal. 1947).

Opinions

SPENCE, J.

Petitioners seek annulment of an award based upon the death of one Dallas Walker, who was fatally injured while transporting scaffolding to a house which petitioner Manuel Perguica was having built and on which the deceased was to do the lathing. In challenge of the jurisdiction of the respondent commission to make such award, petitioners urge: (1) That Walker was an independent contractor but (2) even if he were an employee of Perguica, the injury was not one arising out of and occurring in the course of the employment. Since the record sustains petitioners on the first issue, the second need not be here considered.

There is no dispute as to the facts. Perguica, a farmer, was having a house constructed on his farm. He hired men on a daily wage basis to do the carpenter work, but he became dissatisfied with such arrangement because it permitted too much “loafing around ... on [his] poeketbook.” After that experience with the carpentry, Perguica entered into a contract with one Witmer for the plastering to be done for a lump sum payment. But Witmer could not proceed with his work until wire netting or screening was attached to the outside of the house to serve as a lathing for the plaster. Accordingly, Witmer brought Walker, a lather by occupation, to the farm and introduced him to petitioner as “the fellow to do the job; to put [up] the wires.” Walker agreed to do the wiring for “fifteen cents per yard” and on that basis he “got the job.” Perguica knew nothing about lathing and did not discuss any of the details of the work with Walker; but just took Witmer’s word that Walker “was a good worker” and that the quoted price was the general charge in that locality. Perguica “was expecting” that Walker would “begin on Thanksgiving Day” but that he would work as he pleased. Payment was to be made after the work was done, the amount [859]*859to be computed according to the number of rolls of wire used. Perguica was to furnish the wire, but Walker was to provide his own tools and equipment. Prior to the commencement of the work on the house Walker needed a scaffold, and it was while he was in the act of transporting this equipment by truck to Perguica’s farm late on Thanksgiving Day that Walker sustained his fatal injuries.

Witmer was not a witness before the respondent commission; so the nature of Perguica’s conversation with Walker in the presence of Witmer and its legal effect rest entirely upon the testimony of Perguica. Generally speaking, it is a question of fact to be determined by the commission, 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 commission’s 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 conclusion 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 Walker’s status compels the conclusion that petitioners met their burden of proving that he was an independent contractor (Lab. Code, § 5705(a)), and that the commission’s award based on a contrary finding is not sustainable. (Ponsetti v. Industrial Acc. Com., 5 Cal.App.2d 498 [42 P.2d 1043] ; Winther v. Industrial Acc. Com., 16 Cal.App.2d 131 [60 P.2d 342] ; State Comp. Ins. Fund v. Industrial Acc. Com., 46 Cal.App.2d 526 [116 P.2d 173].)

An independent contractor is one “who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (Lab. Code, § 3353.) The distinction between the status of an independent contractor and that of an employee rests upon several important considerations. A material and often conclusive factor is the right of an employer to exercise complete and authoritative control of the mode and manner in which the work is performed. The existence of such right of control, and [860]*860not the extent of its exercise, gives rise to the employer-employee relationship. (S. A. Gerrard Co. v. Industrial Acc. Com., supra, 17 Cal.2d 411, 413-414; Riskin v. Industrial Acc. Com., supra, 23 Cal.2d 248, 253; Industrial Indemnity Exchange v. Industrial Acc. Com., 26 Cal.2d 130, 135 [156 P.2d 926].) Strong evidentiary support of the employment relationship is “the right of the employer to end the service whenever he sees fit to do so.” (Press Publishing Co. v. Industrial Acc. Com., 190 Cal. 114, 120 [210 P. 820] ; see, also, Hillen v. Industrial Acc. Com., 199 Cal. 577, 582 [250 P. 570]; Riskin v. Industrial Acc. Com., supra, 23 Cal.2d 248, 253; California Employment Com. v. Los Angeles etc. News Corp., 24 Cal.2d 421, 425 [150 P.2d 186] ; Yucaipa Farmers etc. Assn. v. Industrial Acc. Com., supra, 55 Cal.App.2d 234, 237.) “An employee may quit, but an independent contractor is legally obligated to complete his contract.” (Baugh v. Rogers, supra, 24 Cal.2d 200, 206-207; Los Flores School Dist. v. Industrial Acc. Com., 13 Cal.App.2d 180, 183 [56 P.2d 581].) There are “other factors to be taken into consideration,” as stated in Empire Star Mines Co. v. California Employment Commission, 28 Cal.2d 33, at page 43 [168 P.2d 686

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Bluebook (online)
179 P.2d 812, 29 Cal. 2d 857, 1947 Cal. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perguica-v-industrial-accident-commission-cal-1947.