Hartford Accident & Indemnity Co. v. Industrial Accident Commission

THOMPSON, J.

This is a proceeding to review an award of the Industrial Accident Commission. The commission

[590]

found that Louis Maggiora sustained injury arising out of and occurring in the course of employment by bis' brother, Vincent Maggiora, as general employer and by John A. Roebling’s Sons Company as special employer; that the general employer’s compensation carrier Avas the petitioner, Hartford Accident & Indemnity Company “which received the premium upon the payroll of said employer for the service in the course of performance of Avhich said injury Avas sustained”; that the special employer’s compensation carrier Avas the State Compensation Insurance Fund and that the injured employee’s pay Avas not included on the special employer’s payroll for computation of insurance premium, nor Avas a premium paid thereon by the special employer to its insurance carrier. The commission therefore assessed the entire compensation liability against the petitioning insurance carrier of the general employer. The aAvard Avas made against petitioner alone and both employers and the State Compensation Insurance fund were discharged.

Petitioner contends that the findings do not support the award against it, since the evidence does not show any control by the general employer; that, conceding the propriety of the award against the insurance carrier of the general employer, the special employer was also liable for compensation and it was error to discharge its insurance carrier.

Louis Maggiora had been employed by his brother, a cement contractor, since 1923. In July of 1935, the John A. Roebling’s Sons Company, which had a construction contract in connection with the Golden Gate bridge, hired a truck and driver from Maggiora for $12 a day, Maggiora to furnish gasoline and oil. It was stipulated that the driver be paid $6 a day as that was the rate established by the bridge district. The applicant did hauling on the job at the direction of employees of Roebling’s Sons and, on occasions, worked in their storeroom when he was not needed to drive his truck. Maggiora paid his salary and sent a substitute for him when he was ill for several days and admitted he had authority to discharge him if his work was not satisfactory and that he could have put his brother on another job by sending another driver to Avork for Roebling’s Sons. Before the contract was concluded the superintendent of Roebling’s Sons asked Maggiora about his compensation insurance and asked to inspect the policy.