State Compensation Insurance Fund v. Industrial Accident Commission

158 P.2d 195, 26 Cal. 2d 278, 1945 Cal. LEXIS 154
CourtCalifornia Supreme Court
DecidedApril 20, 1945
DocketS. F. No. 17134
StatusPublished
Cited by11 cases

This text of 158 P.2d 195 (State Compensation Insurance Fund 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
State Compensation Insurance Fund v. Industrial Accident Commission, 158 P.2d 195, 26 Cal. 2d 278, 1945 Cal. LEXIS 154 (Cal. 1945).

Opinion

SHENK, J.

Petitioner seeks the annulment of an award of compensation against it as the insurer of Carrico & Gautier found to be the general employer of the injured workman. The award also runs against the insurer of a company found to be the special employer. Petitioner contends that the evidence is insufficient to establish the general employment; that it was improperly joined as a party defendant; and that [280]*280the claim, as to it, is barred by the statute of limitations. (Lab. Code, § 5405.)

Carrico & Gautier, hereinafter called Carrico, the petitioner’s insured, had a general contract to erect a warehouse at Marinship, Sausalito. Among several subcontractors was Arch Rib Truss Company, hereinafter called the Arch Company. In the construction of the warehouse Carrico erected uprights and put in crossbeams, and the Arch Company then furnished trusses and the labor for placing them. Carrico and the Arch Company shared an office at Marinship and the employees of each wore identification badges issued by the shipyard bearing the name of Carrico.

Carrico rented a crane and oral arrangements were made for the Arch Company to share in its use. The same crew operated the crane for both. If uprights were to be moved, the crew moved them for Carrico; if arches, it moved them for the Arch Company. Accurate records were kept of the time the crane and crew were used by each, and the crew was paid separately and proportionally by each. The rental charges were also apportioned.

R. E. Rodgers, the employee claimant, applied for a job through his union and was told to report at Carrico’s shipyard office. He reported on May 26, 1942, and was conducted to the foreman of the Arch Company for an interview. The foreman instructed him to report for work the next day, and he was placed in the crane crew. Rodgers testified: “We were working seven days a week but I didn’t work on Sunday. I didn’t know I was supposed to work. ' In fact, the timekeeper for Carrico & Gautier told me we weren’t supposed to work on Sunday, and when I came back on Monday morning the Arch Rib Truss foreman said we should have worked. ’ ’ He also stated that when the crane was used for uprights the crew worked under a Carrico foreman, and that when it was used for trusses, they worked under an Arch Company foreman.

After about eight days of employment, and on June 4, 1942, while the crane was being used by the Arch Company, a defective prop caused an arch truss to slide down across the shoulders and back of the employee, severely injuring him. First aid was rendered at the shipyard and he was then taken to St. Mary’s Hospital which was designated by petitioner, as the insurer of Carrico, for the latter’s employees. There [281]*281he received both medical and surgical treatment. His accrued wages were paid separately by Carrico and the Arch Company according to the time the crane was used by each during his hours of employment. On the day after the accident one of the members of the Carrico firm notified petitioner that the injured man was not a Carrico employee.

After a stay of about a week at St. Mary’s Hospital, the employee was moved to the hospital designated by the insurer of the Arch Company and treatment was thereafter given by the physicians named by that company, which also paid compensation to January 21, 1943. On January 12, 1943, the employee filed an application for adjustment of his claim against the Arch Company and its insurer. When the matter came on for hearing before the commission, the Arch Company’s insurer asked that Carrico and its insurer be joined as parties defendant. On February 26, 1943, an order was made accordingly.

The commission found Carrico to be the general employer and the Arch Company the special employer of the workman at the time of the injury. It expressly found that the claim against petitioner, as insurer of Carrico, was not barred by the statute of limitations, and rendered a permanent disability award against both insurers.

An application for a rehearing was denied, and this proceeding followed.

Petitioner challenges the sufficiency of the evidence to support the finding of general employment. At most, petitioner claims, it shows a concurrent employment under which the employee worked separately and solely for each company during the hours the crane was used by each, there being no exercise of joint control at any time. We are of the opinion that the evidence is reasonably susceptible to the inference of general employment by Carrico, and is therefore sufficient to support the commission’s findings and conclusion. The manner of hiring, the wearing of the Carrico badge, the assignment of hours and place of work, the renting of the crane, the arrangement for its use, the general provision for first aid, and other factors all indicate a right in Carrico to control the workmen with relation to the project. To establish a general employment it is only necessary that there be present the right to control, as distinguished from the exercise of the right, and where two employers jointly inter[282]*282ested in the project exert some measure of control, both are liable for compensation benefits.

Reaffirming this rule in a recent case this court said: “It is not only the actual exercise of control, but the right or potential power of control which is important in determining the status of one as an employer. . . . [A] general and special employer relationship is present if there exists in each some power, not necessarily complete, of direction and control, and . . . whether there is such power of control is a question of fact. ...” (National Auto. Ins. Co. v. Industrial Acc. Com., 23 Cal.2d 215, 219 [143 P.2d 481], and cases there cited.) Applying that rule to the facts in the present proceeding the commission’s conclusion may not be disturbed.

Petitioner contends that the commission was without power to join it as a party defendant at the request of the other defendant insurer. Relying on the general rule that new parties may be brought in only when their presence is necessary to a full determination of the rights of the parties before the court touching the matter in litigation (Lewis v. Fox, 122 Cal. 244, 250 [54 P. 823]; Alpers v. Bliss, 145 Cal. 565, 571 [79 P. 171]; 20 Cal.Jur. § 34, p. 536), the petitioner argues that its joinder as a party defendant was not necessary to a full and complete determination of the controversy between the parties then before the commission, for the employee in any event would have received his full award from the other employer. The Labor Code, section 5307, empowers the commission to “(a) Adopt reasonable and proper rules of practice and procedure. . . . (d) Provide for the joinder in the same proceeding of all persons interested therein, whether as employer, insurer, employee, dependent, creditor, or otherwise. ...” Under this authorization the commission has the power on its own motion or on the application of any party before it to order the joinder as a defendant of any party against whom the employee may make claim for compensation. The ease of State Comp. Ins. Fund v. Industrial Acc. Com., 20 Cal.2d 264 [125 P.2d 42

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Bluebook (online)
158 P.2d 195, 26 Cal. 2d 278, 1945 Cal. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-compensation-insurance-fund-v-industrial-accident-commission-cal-1945.