Ponsetti v. Industrial Accident Commission

California Court of Appeal

Ponsetti v. Industrial Accident Commission

42 P.2d 1043, 5 Cal. App. 2d 498, 1935 Cal. App. LEXIS 1096

CourtCalifornia Court of Appeal

DecidedMarch 25, 1935

DocketCiv. 9743

StatusPublished

Cited by4 cases

This text of 42 P.2d 1043 (Ponsetti v. Industrial Accident Commission) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ponsetti v. Industrial Accident Commission, 42 P.2d 1043, 5 Cal. App. 2d 498, 1935 Cal. App. LEXIS 1096 (Cal. Ct. App. 1935).

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Opinion

NOURSE, P. J.

The individual petitioners operated a bakery under the partnership name. They engaged one Rente to repair a dough mixer used in the course of their business. Rente repaired the dough mixer and then, of his own accord, attempted to grease the gears. These gears were of a kind that did not require greasing and petitioners gave Rente no instructions or suggestions to work upon them. While engaged in working on the gears Rente incurred injuries for which the respondents found petitioners liable to pay compensation. In their petition for a review of this award the petitioners rely mainly on the point that Rente was not an employee.

Their contention must be sustained. Rente was an itinerant, but expert machinist, who furnished all his own tools, kept his own time, and charged petitioners for his time and the materials which he furnished and used in the work. This was his business or occupation. He had been engaged by others to repair machinery and had previously been called in by petitioners for similar jobs. He was not paid as a workman but always rendered a bill in which he listed the hours of service and the cost of materials furnished. The petitioners did not at any time exercise or reserve the right to exercise any shadow of control over his work. They were all bakers who knew nothing about the *500 repair of such machines and could not have controlled Rente’s operations if they had had the right to do so. It was no doubt because of their want of knowledge and experience in mechanical repairs that they called in an expert machinist, just as one would summon a plumber, an auto mechanic, or an electrician to repair machinery upon his own time and in the exercise of his own knowledge and skill.

Here the contract was made for a specific result with one who followed an independent employment or occupation of a highly technical character. He comes under the express definition of an independent contractor found in section 8a of the Workmen’s Compensation Act as interpreted in Moody v. Industrial Acc. Com., 204 Cal. 668, 672 [269 Pac. 42, 60 A. L. R. 299]; Fidelity & Casualty Co., v. Industrial Acc. Com., 191 Cal. 404, 407 [216 Pac. 578, 43 A. L. R. 1304]; Becker v. Industrial Acc. Coin., 212 Cal. 526, 531 [298 Pac. 979]; Counihan v. Lufstufka Bros. & Co., 118 Cal. App. 602, 605 [5 Pac. (2d) 694] ; Lillibridge v. Industrial Acc. Com., 4 Cal. App. (2d) 237 [40 Pac. (2d) 856]. Under the admitted facts of the ease it follows that respondents were without jurisdiction to make the award complained of.

The award is annulled.

Sturtevant, J., and Spence, J., concurred.

An application by petitioners to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 24, 1935.

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NOURSE, P. J.

The individual petitioners operated a bakery under the partnership name. They engaged one Rente to repair a dough mixer used in the course of their business. Rente repaired the dough mixer and then, of his own accord, attempted to grease the gears. These gears were of a kind that did not require greasing and petitioners gave Rente no instructions or suggestions to work upon them. While engaged in working on the gears Rente incurred injuries for which the respondents found petitioners liable to pay compensation. In their petition for a review of this award the petitioners rely mainly on the point that Rente was not an employee.

Their contention must be sustained. Rente was an itinerant, but expert machinist, who furnished all his own tools, kept his own time, and charged petitioners for his time and the materials which he furnished and used in the work. This was his business or occupation. He had been engaged by others to repair machinery and had previously been called in by petitioners for similar jobs. He was not paid as a workman but always rendered a bill in which he listed the hours of service and the cost of materials furnished. The petitioners did not at any time exercise or reserve the right to exercise any shadow of control over his work. They were all bakers who knew nothing about the *500 repair of such machines and could not have controlled Rente’s operations if they had had the right to do so. It was no doubt because of their want of knowledge and experience in mechanical repairs that they called in an expert machinist, just as one would summon a plumber, an auto mechanic, or an electrician to repair machinery upon his own time and in the exercise of his own knowledge and skill.

Here the contract was made for a specific result with one who followed an independent employment or occupation of a highly technical character. He comes under the express definition of an independent contractor found in section 8a of the Workmen’s Compensation Act as interpreted in Moody v. Industrial Acc. Com., 204 Cal. 668, 672 [269 Pac. 42, 60 A. L. R. 299]; Fidelity & Casualty Co., v. Industrial Acc. Com., 191 Cal. 404, 407 [216 Pac. 578, 43 A. L. R. 1304]; Becker v. Industrial Acc. Coin., 212 Cal. 526, 531 [298 Pac. 979]; Counihan v. Lufstufka Bros. & Co., 118 Cal. App. 602, 605 [5 Pac. (2d) 694] ; Lillibridge v. Industrial Acc. Com., 4 Cal. App. (2d) 237 [40 Pac. (2d) 856]. Under the admitted facts of the ease it follows that respondents were without jurisdiction to make the award complained of.

The award is annulled.

Sturtevant, J., and Spence, J., concurred.

An application by petitioners to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 24, 1935.

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42 P.2d 1043, 5 Cal. App. 2d 498, 1935 Cal. App. LEXIS 1096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ponsetti-v-industrial-accident-commission-calctapp-1935.

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