SUPREME COURT OF CALIFORNIA.

FIDELITY & DEPOSIT CO. OF MARYLAND ET AL.

VS.

BRUSH ET AL. (S. F. 8127.)*

1. WORKMEN'S COMPENSATION ACT-INJURY TO RELATION

-EVIDENCE.

Evidence held not to warrant a finding that a son of a man employed to cut wood by the cord, and who was helping his father, was an employee within the meaning of the act.

2. WORKMEN'S COMPENSATION-WHO ARE EMPLOYEES.

One employed to cut wood by the cord and posts at a fixed sum where there was no agreement as to hours or method of work, was. an independent contractor, and a son helping him for half that his father received for the work was not an employee, within the Workmen's Compensation Act, and injury. was not entitled to compensation for

In Bank. Proceedings under the Workmen's Compensation Act by Martin A. Brush to obtain compensation for personal injuries, opposed by the Round Valley Land Company, a corporation, the employer, and the Fidelity & Deposit Company of Maryland, a corporation. Comfor a writ of review, and certiorari was issued. pensation was awarded, and employer and insurance company applied

Award annulled.

Alfred C. Skaife and Guy Le Roy Stevick, both of San Fancisco,

for Petitioners.

Christopher M. Bradley, of San Francisco, and Warren H. Pillsbury, of Oakland, for Respondents.

MELVIN, J.

A writ of certiorari was issued, directed to the Industrial Accident Commission, for the purpose of reviewing an award of compensation to Martin A. Brush, a laborer, injured while cutting wood on the premises of the Round Valley Land Com

pany.

The father of the applicant, one Seymour Brush, had made an agreement with the superintendent of the Land Company's property to cut 60 to 80 cords of wood, or as much as would be required for the use of the company in its kilns for the ensuing year. By the terms of this arrangement Seymour Brush was to be paid $1.75 a cord for firewood and six cents for each post cut by him. He was not required to cut any fixed amount of wood, but there was an understanding that he was to keep at work until told by Harrington, the superintendent, that a sufficient quantity of cut wood had been produced. There was no agreement regarding the hours of work nor the methods to be Brush entered into an arrangement with his son, * Decision rendered, Nov. 10, 1917. 168 Pac. Rep. 890.

pursued.

Martin A. Brush (the man who was injured subsequently), whereby they agreed that they should work together, pile their wood together, and have it measured, and that the amount received for the work should be equally divided between them. The applicant testified that Mr. Harrington told him at times to assist his father with the work.

[1] This was denied by the superintendent, but giving to the testimony of Martin Brush all possible force it would not justify a finding that he was hired by the representative of the Round Valley Land Company to do the chopping. The father received payment whenever he asked the land company for an advance, and the final settlement was made with him. The company was not a party to the agreement whereby the proceeds of the work were to be equally divided. The most that may be said of the company's participation in causing Martin to be engaged in the work is that its representative knew he was so employed and approved of his activity.

[2] In holding that the father and the son were both employees of the land company, the Industrial Accident Commission sought to differentiate this case from Danlon Bros. vs. Industrial Accident Commission, 173 Cal. 250, 159 Pac. 715, on the grounds that the man injured was not a remote contractor but the son of the man who directly negotiated with the superintendent of the land company, and that "there was in this arrangement no element of profit or loss usually attended upon independent contracts or commercial transactions." Neither supposed ground of distinction is good. The fact that in the Donlon Case the man injured was the subcontractor twice removed from the owner of the trees, does not change the principles regarding employment of independent assistance by one who engages to do certain work. Nor does the agreement considered in the Donlon Case differ in essence from the one made with the elder Brush. We fail to see what "the element of profit and loss usually attendant upon independent contracts or commercial transactions" has to do with the case. That element is entirely a false quantity in this discussion. It is conceded by learned counsel for the Industrial Accident Commission that if Seymour Brush was not an employee but an independent contractor the award of the Industrial Accident Commission must be annulled, whether the son, Martin A. Brush, was a partner or an employee of his parent, and this must be true under the authority of Donlon vs. Industrial Accident Commission, supra, and Western Indemnity Company vs. Pillsbury, 172 Cal. 807, 159 Pac. 721. In the former case, which was very similar to this one, Mr. Justice Henshaw, who delivered the opinion of the court, commenting on the finding of a majority of the commissioners that the injured woodchopper was an employee of the Donlon Bros., said:

"Commissioner Weinstock filed his dissent holding that the relation of employer and employee necessarily involves the ele

ment of personal service, which is not delegable, and that the facts clearly established that such relationship did not exist; that Kataoka, the only one with whom petitioner had dealings, was an independent contractor, and that this relationship extended to the subcontractor. In this we think the dissenting commissioner was clearly right.'

In the other case cited above, the following language was used:

"It has been said that the true test of a contractor is that he renders service in the course of an independent occupation, following his employer's desires in the results but not in the means used (1 Shearman & Redfield on Negligence [6th Ed.] 396), but in weighing the control exercised we must carefully distinguish between authoritative control and mere suggestion as to detail or the necessary co-operation where the work furnished is a part of a larger undertaking. Standard Oil Co. vs. Anderson, 212 U. S. 221, 222 (53 L. Ed. 480, 29 Sup. Ct. Rep. 252). The same principles are announced in Fink vs. Missouri Furnace Co., 82 Mo. 276 (52 Am. Rep. 376)."

Measured by this definition, it is clear from the undisputed facts presented by the record that Seymour Brush was not an "employee" or a "servant," in contemplation of the Industrial Compensation Act, but an independent contractor.

It follows that the award must be annulled, and it is so ordered. We concur: Anngellotti, C. J.; Henshaw, J.; Shaw, J.; Sloss, J.; Lawlor, J.; Lorigan, J.

SUPREME COURT OF IOWA.

PAUCHER

vs.

ENTERPRISE COAL MINING CO. (No. 31650.)*

WORKMEN'S COMPENSATION-ACCEPTANCE AND REJECTION OF STATUTE-NOTICE OF ACCEPTANCE.

Code Supp. 1913, § 2477m, par. 4(d), constituting part of the Workmen's Compensation' Act, provides that employers shall be presumed to have elected to come under the statute, unless notice in writing to the contrary shall have been given by posting it in some conspicuous place at the place where the business is carried on, and also by filing notice with the Industrial Commissioner. Section 2477m3, subd. (a), provides that, when an employer has given notice of rejection of the statute, such election shall continue in force until such employer shall elect * Decision rendered, Nov. 16. 1917. 164 N. W. Rep. 1035.

to come under the statute as provided in subdivision (b). Subdivision (b) provides that an employer rejecting the act may waive such rejection by giving notice in writing in the same manner required in electing to reject it, which shall become effective when filed with the Industrial Commissioner. Held, mere filing of notice of acceptance with Industrial Commissioner, was not substantial compliance without posting any notice. though the posted notice of rejection was torn down, and there was a rumor or general talk among the employees that the employer had accepted the statute, and though an injured employee could not talk or read English, so that a posted notice would have been unavailing.

Appeal from District Court, Polk County; W. H. McHenry, Judge. Action for damages for injury in coal mine. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals. Affirmed.

Clark & Pyers, of Des Moines, for Appellant.

S. F. Prouty and Mulvaney & Mulvaney, all of Des Moines, for Appellee.

PRESTON, J.

I. The trial court held that defendant had not, at the time of the injury to plaintiff, complied with the provisions of the Workmen's Compensation Act in regard to electing to come within the same, and that it was without the act. The errors assigned are, substantially, that the court erred in holding that defendant company was not within the provisions of the Employers' Liability Act, because of its failure to post notice of its election to waive the rejection of said act theretofore made, and in holding that defendant can no longer avail itself of the common-law defenses of assumption of risk, etc., because of its failure to insure its liability as provided in the act, and in not permitting defendant to prove that it was generally known at and about the mine that defendant had waived its rejection of the act, and that it had filed notice of said waiver with the Industrial Commissioner.

It appears that in May, 1914, defendant filed a notice with the Industrial Commissioner, rejecting the provisions of the Liability Act, and posted a notice of the same at its mines, as required by section 2477m of the Supplement to the Code of Iowa. This is admitted by the defendant; but it claims that thereafter, and on September 1, 1914, and before plaintiff was hurt, which was in May, 1915, it had taken such steps as would waive its rejection, by filing a notice with the Industrial Commissioner, and by tearing down the notices it had posted at the mine prior thereto, rejecting the act. The notice just referred to was addressed to the Iowa Industrial Commissioner, and recites that it accepts the provisions to pay compensation as provided in the act. It is admitted by defendant that it had not posted any kind of a notice. at its place of business, as provided by section 2477m3 of the Supplement to the Code of 1913. That section reads:

"When the employer or employee has given notice in compliance with this act, electing to reject the terms thereof, such election shall continue and be in force until such employer or em

ployee shall thereafter elect to come under the provisions of this act, as provided in subdivision (b) of this section.

"(b) When an employer or employee rejects the terms, conditions or provisions of this act, such party may at any time thereafter elect to waive the same by giving notice in writing in the same manner required of the party in electing to reject the provisions of the act and which shall become effective when filed with the Iowa Industrial Commissioner."

Section 2477m, par. 4(d), provides in part that:—

The employer shall be presumed to have elected to pay compensation according to the provisions of the act, "unless and until notice in writing of an election to the contrary shall have been given to the employees by posting the same in some conspicuous place at the place where the business is carried on, and also by filing notice with the Iowa Industrial Commissioner, with return thereon by affidavit, showing the date that notice was posted, as by ths act provided."

The defendant pleaded, and sought to prove, that from and after the 1st day of September, when it filed notice of election with the Commissioner and tore down the notice of rejection, it was a matter of common knowledge, and generally talked among the employees of defendant, that it had waived its rejection of the provisions of the Compensation Act and had elected to accept the provisions of said act. It is not claimed, however, that plaintiff had any actual notice or knowledge thereof.

The defendant had not insured its liability under the Compensation Act, nor had it furnished proof to the insurance department, nor to the Iowa Industrial Commissioner, as to its solvency and

ability to pay the compensation and benefits provided for by the act, nor deposited with the insurance department any security to secure the payment of such compensation. Defendant alleged, however, that it was solvent and financially able to pay. Plaintiff claims that, because defendant had not complied with this insurance feature of the law, it was for this reason, also, not within the provisions of the act. If plaintiff's position as to either of these points is well taken, then the ruling of the trial court was correct. We think a substantial compliance with the law in the respects mentioned, as to giving notice of election, and the waiver thereof provided in the section quoted, etc., is required. There was not a substantial compliance by the defendant in these respects. It is possible that, had plaintiff had actual notice of the facts, it would be binding upon him; but it is not necessary to discuss that question, because, as stated, there is no claim that he did have

actual notice.

Plaintiff was an

lish language, and defendant says that, had a notice been posted, it would have been unavailing. But it is clear that notice given according to the statute would constitute sufficient notice.

Austrian, and could not talk or read the Eng

Vol. I-Comp. 11.

We