Melone v. Industrial Accident Commission

California Court of Appeal Oct 18, 1935 No. Civ. 10185Published

Before: Shinn

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Holding. The court held that the injured minor was an employee of the petitioner rather than an independent contractor, as the petitioner maintained control over the work, and the employment was not casual under the Workmen’s Compensation, Insurance and Safety Act.

Issues

Whether the applicant was an employee of the petitioner under the Workmen’s Compensation, Insurance and Safety Act of 1917.
Whether the applicant was an independent contractor rather than an employee.
Whether the employment was casual under the Act.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There were present the essentials of the relationship of employer and employee, as defined by sections 7 and 8 of the act.”

“The boys were not working in pursuit of an independent calling; they were not free to go about their tasks in their own uncontrolled way with a responsibility only to accomplish a certain agreed result”

“The fact that the compensation was paid by way of commissions, instead of salary, is not material.”

SHINN, J.,

pro tem.

Upon findings that respondent Roy Cuccia, 16 years of age, suffered injuries in the course of and arising out of his employment by the petitioner herein, an award was made to him by the Industrial Accident Commission, based upon the minimum average earnings provided by law as a basis for compensation, and also for certain expenses and attorney’s fees. The only point urged on this proceeding to review the award of respondent Commission is that the applicant Cuccia was not an employee of petitioner under the Workmen’s Compensation, Insurance and Safety Act of 1917, as amended.

Petitioner was a peddler of fruits and vegetables, in which business he drove a truck and sold from house to house. He was assisted, at times and as often as he had need for their services, by a number of small boys, among them the applicant Cuccia, who took fruits or vegetables from the truck in buckets and sold same to householders. In the morning of the day the applicant was injured, six boys, including Cuccia, assisted petitioner in selling cantaloupes. At noon they had lunch at petitioner’s residence, and in the afternoon, at petitioner’s request, as they were accustomed to do when some of the produce remained unsold, they took the truck and endeavored to sell the remainder of the cantaloupes. One of the boys drove the truck and directed the work of the other boys. Each boy was paid 20 per cent of the amount of his sales and the boy in charge of the truck was paid 10 per cent of the amount of the total sales. The business had been carried on in this fashion by petitioner for several months and Cuccia had been so employed for a week. He had worked with petitioner on the morning of July 3, 1934, for which he had been paid, and had been directed by petitioner to go with the other boys in the afternoon to sell melons. Cuccia rode and worked with the other boys on the truck. As they were returning to petitioner’s home with the unsold melons, the truck was struck by an automobile and Cuccia was injured. He was therefore engaged in his employment at the time of his injury.

(Harlan

Industrial Acc. Com.,

194 Cal. 352 [228 Pac. 654].)

[572]

Melone v. Industrial Accident Commission

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SHINN, J.,

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