TRAYNOR, J. Plaintiff brought this action pursuant to section 45.10 of the California Unemployment Insurance Act (Stats. 1935, p. 1226, as amended; 3 Deering’s Gen. Laws, Act 8780d) to recover contributions paid under protest on the remuneration received by free-lance jockeys performing services for plaintiff during the period from April 1, 1944, to June 30, 1944. Defendant appeals from a judgment in favor of plaintiff.
During the period in question plaintiff owned a string of horses that he raced at Bay Meadows race track. He engaged free-lance jockeys to ride the horses in various races. They were not in his regular employment but were engaged separately for each race. In March, 1944, the California Employment Stabilization Commission ruled that the free-lance jockeys involved were in “employment” within the meaning of section 6.5 of the Unemployment Insurance Act and that any remuneration paid to the jockeys was subject to contributions as provided in the act.
[36]The evidence at the trial related in the main to the customs and practices of the owners of race horses and the trainers generally in employing jockeys, and their control over the jockeys’ activities in riding the horses. Plaintiff testified that he had no written agreement or understanding with the jockeys in question other than a standard form signed by the jockeys’ agents specifying the jockey’s name, the'race, the date, and the first and second calls. There was no other evidence of any specific agreement, written or oral between the plaintiff and the jockeys whose services are involved in this case. Neither plaintiff nor defendant introduced any competent evidence as to the actual control exercised over the jockeys in question by the plaintiff and his trainer. The evidence showed that the jockeys, through agents, contracted with the owners to ride particular horses in particular races. In accordance with rule 278 of the rules adopted by the California Horse Racing Board pursuant to chapter 769, Statutes of 1933, the remuneration for the services of these jockeys was $35 when they won a race and $15 when they lost. Such remuneration was received by all jockeys in the absence of specific contract provisions to the contrary. It was shown that it is the custom for a jockey to report to the jockey room with his personal riding equipment at noon on the day of the race; that he changes into silks furnished by the owner and then proceeds to the paddock, where he meets with the owner or trainer. At this time either the owner or the trainer, acting as the owner’s agent, gives instructions as to the running of the race and the handling of the horse; but, under rule 323(a) of the rules of the California Horse Racing Board, the owner or trainer can give no instructions or orders that do not have as their objective the winning of the race, unless the owner has more than one horse entered in the same race. If the owner or trainer does not wish the horse to be whipped, he may so instruct the jockey, but he cannot enforce such an instruction unless he has the whip taken from the horse upon application to the stewards, in which case no whip may be used on that particular horse until, upon the application of the owner or trainer, the stewards change the ruling. The owner must pay the jockey the contract price in the event he discharges the jockey without cause before the running of the race. Obviously, neither the owner nor the trainer can discharge the jockey while he is engaged in running the race. After the race, the owner or trainer usually confers with the jockey to ascertain how the horse performed and, if the horse [37]did not do as expected, the reasons therefor. If it is apparent that the jockey did not follow instructions, the owner does not engage the jockey to ride again.
There is no conflict in the evidence as to the facts outlined above, but plaintiff contends that defendant had the burden of showing the actual control exercised by plaintiff or his trainer over the jockeys in question, and since defendant failed to show that such control was actually exercised, the jockeys were properly held not to be employees. It is clear, however, that plaintiff made no showing that the owner or trainer did not exercise, or have the right to exercise, control except insofar as the right to exercise control was limited by the rules of the California Horse Racing Board or by the inaccessibility of the jockeys while actively engaged in the race. The only finding of fact made by the trial court on the question of employment was a general finding that during the period in question the free-lance jockeys engaged by plaintiff were not employees and the compensation paid them consisted of payments to independent contractors. The basis of this finding is clear from the memorandum opinion of the trial court. The trial court not only decided the case on the theory that the actual control exercised by the particular taxpayer over those performing services for him determines their relationship but placed the burden of proof on the defendant commission to show that control was actually exercised. It thus distinguished Drillon v. Industrial Acc. Com., 17 Cal.2d 346, 351 [110 P.2d 64], upholding a determination by the Industrial Accident Commission that free-lance jockeys are employees within the meaning of section 3351 of the Labor Code. The facts in that case are substantially the same as those in the present case except that the right to control was shown by its actual exercise (cf. Connell v. Harris, 23 Cal.App. 537, 542 [138 P. 949]; see 19 A.L.R. 226, 240) rather than by the customs and practices of the occupation. Clearly, the existence of a contractual right may be shown by usages and customs. (See Hind v. Oriental Products Co., Inc., 195 Cal. 655, 667 [235 P. 438].)
The decision in the Drillon ease was based on the right of the owner to exercise control over the jockeys (supra, at 355), the principal test of employment under section 6.5 of the Unemployment Insurance Act (Empire Star Mines Co. v. California Emp. Com., 28 Cal.2d 33, 43 [168 P.2d 686]). [38]It was held that statutes and administrative regulations designed for public protection, such as the rules of the racing board, even though they may limit the principal’s right of control, do not remove persons performing services for others from the protection of the Workmen’s Compensation Act. In the present case the same reasoning is applicable to the same rules. (See California Emp. Stab. Com. v. Morris, 28 Cal.2d 812, 817 [172 P.2d 497].) Hence, the ultimate facts of this case are indistinguishable from those in Drillon v. Industrial Acc. Com., supra. Even if it is assumed that the actual exercise of control rather than the right to control is the crucial element in this case, it clearly is not the law that the burden of proof is on the taxing authority in an action by a taxpayer to recover taxes on the ground that they were illegally assessed. (See United States v. Anderson, 269 U.S. 422, 443 [46 S.Ct. 131, 70 L.Ed. 347] ; 3 Cooley, Law of Taxation, 4th ed. § 1307; and see Robinson v. George, 16 Cal.2d 238, 244 [105 P.2d 914], holding that the burden of proof generally is on the party attacking the employment relationship.)
It cannot seriously be contended that one who is an employee within the meaning of section 3351 of the Labor Code (Workmen’s Compensation Act) is not engaged in “employment” within the meaning of section 6.5 of the California Unemployment Insurance Act. Section 3351 of the Labor Code provides that “ ‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written. . . .” An employer is defined by section 3300 of the Labor Code to include “Every person including any public service corporation, which has any natural person in service.” Section 6.5 of the Unemployment Insurance Act defines employment as “service . . . performed for wages or under any contract of hire, written or oral, express or implied.”
It has been held that the word “employment” as defined in section 6.5 of the Unemployment Insurance Act does not include independent contractors. (Briggs v. California Emp. Com., 28 Cal.2d 50, 54 [168 P.2d 696].) In Empire Star Mines Co. y. California Employment Commission, 28 Cal.2d 33, 43 [168 P.2d 686], this court set forth the rules for the determination of the question whether or not a person is an independent contractor or is engaged in employment under-[39]section 6.5. The principal test of the employment relationship was held to be the “right to control over the manner and means of accomplishing the result desired.” Strong evidence of this right is shown by the right of the principal to discharge the worker. The secondary tests are listed in that opinion as including, “ (a) whether or not the one performing service is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (e) the' skill required in the particular occupation; (d) whether the principal or workman supplies the instrumentalities, tools, and the place of work for the persons doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by time or by the job; (g) whether or not the work is a part of the regular business of the principal; (h) whether or not the parties believe they are creating the relationship of employer-employee. (Rest., Agency, § 220; Cal.Ann. § 220.) ”
It has already been observed with regard to the principal test, that the owner or trainer has the right of control except insofar as he is limited by the rules of the racing board. The right to discharge in this case is limited only by the rule that the owner may not discharge a jockey without cause unless he pays the contract price. There is no question that the owner may discharge a jockey up to the time he is out on the track and physically out of his control. As in any contract of employment for a fixed period, an employee prematurely discharged without cause may recover damages based on his wages. (W. F. Boardman Co. v. Petch, 186 Cal. 476, 483 [199 P. 1047]; cf. Drillon v. Industrial Acc. Com., supra, at 354.)
Among the secondary elements of the employment relation, only three are clearly absent from this case: (c) Jockeys are not unskilled workmen; however, many skilled workmen are employees, (e) Free-lance jockeys are employed for a fixed period, the duration of one race, (f) The basis of payment is the race, not the time involved. The other elements are either present or inapplicable to this case: (a) The occupation is an integral part of the owner’s business, (b) The work is usually performed under the direction of the owner or trainer to the extent allowed by the rules of the California Horse Racing Board, (d) Although the jockey furnishes his [40]personal riding equipment the silks and the horse are furnished by the owner, (g) The question whether horse racing is the regular business or occupation of owners of race horses is immaterial in determining whether jockeys are employees. The plaintiff made no showing that it was not his regular occupation and testified that he could not say what his regular occupation was. (h) The belief of the parties as to the relationship created is relevant only to indicate whether or not there was an assumption of control by the principal and submission thereto by the worker. (Best., Agency, § 220, comment (i). ) There was no evidence in regard to the belief of the parties as to their relationship at the time the services were performed. The belief of the jockeys, however, that they would not be rehired if they failed to follow instructions is relevant to show their submission to control.
Plaintiff contends that the judgment cannot be reversed, since it is based on a conclusion drawn from the evidence as an inference of fact,' not as a conclusion of law. There was no evidence from which the trial court could reasonably have drawn any inference inconsistent with the conclusion that the plaintiff had the right to control the activities of the jockeys except where he was prevented from doing so by the rules of the Racing Board or by the inaccessibility of the jockeys while they were actively engaged in the race. The contention that the question whether a person is an employee under section 6.5 of the Unemployment Insurance Act is wholly one of fact, even when the evidence is not in conflict and not reasonably susceptible of conflicting inferences, is untenable. Under such a rule there would be nothing to prevent conflicting interpretations of identical facts by the various trial courts so that free-lance jockeys would sometimes be classified as employees and sometimes not. Such a rule would make effective enforcement of the Unemployment Insurance Act impossible.
In California Emp. Stab. Com. v. Morris, 28 Cal.2d 812, 818 [172 P.2d 497], this court, applying the same rule as that applied in the Drillon case, supra, held that the Real Estate Act insofar as it regulates real estate salesmen for the protection of the public is not relevant to the question whether such salesmen are employees under section 6.5 of the California Unemployment Insurance Act. The court stated that “. . . the occupation of real estate salesmen, insofar as the Unemployment Insurance Act is concerned, is one that may be classified [41]as that of an employee, or an independent contractor, depending upon the facts of the particular case.” Clearly this statement does not mean that the trial courts of the state can conclude that, under section 6.5, one real estate salesman is an employee while another operating under identical facts is not. It means that whether a particular type of real estate salesman is within the purview of the act depends on the facts involved in the relationship between such salesmen and their principals rather than on some statute that has no relation to unemployment insurance.
The result of the application of the rules of law set forth in Empire Star Mines Co. v. California Emp. Com., supra, will depend in any particular case on the essential facts of that case. Thus, in California Emp. Com. v. Bates, 24 Cal.2d 432, 436 [150 P.2d 192], the judgment of the trial court was reversed because the conclusion of the trial court from the facts was inconsistent with the decision in California Emp. Com. v. Los Angeles Down Town Shopping News Corp., 24 Cal.2d 421, 425 [150 P.2d 186], where the facts were substantially the same. This holding is in accord with the rule, particularly applicable to public law cases where uniformity of decision is important, that if the essential facts are not in conflict the question of the legal relations arising therefrom is a question of law. (Leis v. City and County of San Francisco, 213 Cal. 256, 258 [2 P.2d 26] ; San Diego Trust & Savings Bank v. San Diego County, 16 Cal.2d 142, 153 [105 P.2d 94, 133 A.L.R. 416].)
The judgment is reversed.
Gibson, C. J., Shenk, J., Carter, J., and Spence, J., concurred.
EDMONDS, J. In my opinion, the decision in this case departs from the established rule that the judgment of the trial court will not be disturbed if there is substantial evidence to support its determination. Giving full effect to the evidence and the reasonable inferences to be drawn from it, the finding that an independent contractor relationship existed between the owner and the jockeys should be upheld. As stated by the trial judge in his memorandum of opinion, “there is sufficient evidence in the record to establish the fact that the jockeys in question were independent contractors although the evidence is in dispute.”
[42]I agree that the burden of establishing an independent contractor relationship is upon the party attacking the determination of employment (see Industrial Ind. Exch. v. Industrial Acc. Com., 26 Cal.2d 130, 136 [156 P.2d 926]). Quite evidently that rule was followed in the trial of this case, and, in any event, this court may not rely upon an error of law found in a memorandum of opinion as a basis for reversal. (DeCou v. Howell, 190 Cal. 741 [214 P. 444] ; see Witkin, New Rules on Appeal, 17 So.Cal.L.Rev. 109.)
A jockey, called as a witness in behalf of Isenberg, testified, “I think the procedure is, that if an owner is willing to pay a rider his fee, that he can substitute a rider.” This was in answer to the question as to whether it was “possible for . . . [the jockey] ... to be removed from that mount without the horse being taken out of the race?” As indicated by other testimony of this witness, he was not necessarily referring to the rules of the Racing Board, and it reasonably may be inferred that in his statement as to “the procedure” he was referring to the agreement of the parties or the national custom.
There was also evidence from which it reasonably could be inferred that the jockeys were not required to follow instructions given them. One jockey testified that “His trainer sometimes gave . . . [him] . . . instructions how he thought a horse would run best.” But, he added: “They [owner and trainer] have suggested ways of riding them [horses]. I wouldn’t say they told me just how to ride them. That is impossible.” As to whether or not such instructions were followed, he testified, “Well, if I found out that the horse wasn’t running under those instructions, I would try some other means of getting him to run.” This witness also testified that the owner “may leave it up to your own judgment” as to manner in which the jockey should ride. When asked whether he used his own judgment when riding in a race, he replied: “Yes, you have to use your own judgment. Instructions are followed only when you don’t figure in your own judgment that they hinder the chances of winning.”
It is the well settled rule that when there is a conflict in the evidence, including not only objective facts but also the inferences which reasonably may be deduced therefrom, the determination of the trial court, in regard to the legal relationship of the parties to a controversy, will not be disturbed. (California Emp. Stab. Com. v. Norins Realty Co., 29 Cal.2d 419 [175 P.2d 217]; California Emp. Stab. Com. v. [43]Morris, 28 Cal.2d 812 [172 P.2d 497]; Twentieth etc. Lites v. California Dept. Emp., 28 Cal.2d 56 [168 P.2d 699] ; Briggs v. California Emp. Com., 28 Cal.2d 50 [168 P.2d 696] ; Empire Star Mines Co. v. California Emp. Com., 28 Cal.2d 33 [168 P.2d 686].) And although strong evidence in support of an employment relationship is the right to discharge at will, without cause, the fact that a person’s services may not be so terminated justifies the finding of an independent contractor relationship (Briggs v. California Emp. Com., supra, p. 54; Empire Star Mines Co. v. California Emp. Com., supra, p. 45).
The testimony quoted clearly warrants a conclusion of lack of control, and there is other evidence which supports the trial court’s determination. The jockey furnished most of his own equipment. The method of payment was by the race, not according to the time involved. Jockeys are skilled workers and are employed for a fixed period, the duration of the race. Giving no effect to the rules of the Racing Board, the trial court had ample ground for deciding that an independent contractor relationship existed between the owner and the jockeys. Evidence that, by custom, the owner or trainer had the right to give instructions to the jockey, merely raised a conflict in the evidence which was resolved by the trier of fact. Furthermore, the rules of the Racing Board limit the right of the owner and trainer to control the activities of the jockeys and, therefore, support the finding of an independent contractor relationship.
Neither California Emp. Stab. Com. v. Morris, supra, nor Drillon v. Industrial Acc. Com., 17 Cal.2d 346 [110 P.2d 64], is inconsistent with this conclusion. In the Morris case, the trial court found that certain real estate salesmen were independent contractors. Upon appeal from the judgment, the commission contended that the Real Estate Act gave a broker the right to control a salesman in certain ways and, therefore, as a matter of law, and regardless of a trial court’s finding, all real estate salesmen were employees. Rejecting this contention, the court held that there was evidence to support the finding of the lack of control, and the provisions of the Real Estate Act did not compel a contrary determination. In the Drillon case, the Industrial Accident Commission decided that certain jockeys were employees. As requiring a reversal of the judgment, the taxpayer relied upon the rules of the Racing Board which restrict the right of an owner and trainer to control the activities of a jockey. These rules, it [44]was urged, establish, as a matter of law, that a jockey is an independent contractor. But the court refused to so construe them, and held that the evidence supported the trial court’s determination.
These cases are clearly distinguishable from the situation presented in the record now under review. Here the trier of fact determined that the jockeys who rode Isenberg’s horses were independent contractors. The commission attacks the decision upon the ground that the only evidence in the record which supports the trial court’s finding of lack of control is the limitations found in the rules of the Racing Board. The issue in this regard, therefore, is whether the rules may be used to support a finding of the trial court. In the Morris and Drillon cases, the question was whether, when there is evidence to support the finding of the trial court or commission, may the rules of the Racing Board or the regulatory provisions of the Real Estate Act be invoked to compel a determination contrary to those findings. Both the Morris and the Drillon cases hold that the effect of such rules or regulations is, at most, to set up a conflict in the evidence; they may not be used to require findings contrary to those made by the trial court upon substantial evidence.
Also, I do not agree with the strong implication in the majority opinion that the determination of the legal relationship is primarily a question of law. This implication is found in the reference to the Workmen’s Compensation Act, the holding, in effect, that the Drillon case controls the disposition of the present controversy, and the direction that judgment be entered in favor of the commission. Moreover, the cases of California Emp. Com. v. Los Angeles Down Town Shopping News Corp., 24 Cal.2d 421 [150 P.2d 186], and California Emp. Com. v. Bates, 24 Cal.2d 432 [150 P.2d 192], are cited as standing for the proposition that whether persons are independent contractors or employees is, in effect, a question of law. On the contrary, in the first of these eases the decision was based upon the proposition that “there is substantial evidence to support the findings of the trial court that the boys were employees within the meaning of the Unemployment Insurance Act. ...” The ground of decision in the Bates case was that there was no substantial evidence to support the trial court’s finding of an independent contractor relationship. This is quite different from the present statement that the judgment in favor of Bates “was reversed because the conclusion of the trial court from the facts was [45]inconsistent with the decision in California Employment Commission v. L. A. Shopping News Corporation, 24 Cal.2d 421, 425 [150 P.2d 186], where the facts were substantially the same. ’ ’
For these reasons, I would affirm the judgment of the trial court.