Cal. Comp. Ins. Co. v. Ind. Acc. Com.

118 Cal.App.2d 653 (1953) 258 P.2d 78 CALIFORNIA COMPENSATION INSURANCE COMPANY (a Corporation), Petitioner,

v.

INDUSTRIAL ACCIDENT COMMISSION and CLARENCE O. SMITH, Respondents.

Docket No. 19166. Court of Appeals of California, Second District, Division Three.

June 23, 1953. Kearney, Scott & Clopton for Petitioner.

Kenneth Sperry, Edmund J. Thomas, Jr., and Alvin L. Dove for Respondents.

[654] SHINN, P.J.

The insurance carrier of the First Church of the Brethren petitions for review of an award of compensation to respondent Clarence O. Smith for injuries received while he was working on church property as a carpenter.

The matter was partially heard and was referred to respondent commission for the purpose of completing the record which the court considered to be then inadequate for a disposition of the matters in issue. (115 Cal. App.2d 142 [251 P.2d 348].) A transcript of additional evidence has been furnished and filed as a part of the record.

In 1949, the First Church of the Brethren, Incorporated, was constructing a church building. Some of the work was contracted, but the carpentry work, with a minor exception, was done by members of the church. These members were paid an hourly wage of $2.125, except upon days when they donated their services. This was usually on Saturdays, although some services were given without compensation on other days. It was a common practice among the carpenters to give some services free when they were not otherwise employed. It was the policy of the church membership and management to have the carpentry work done by members who were carpenters, and a principal reason was that while such members were paid wages at current rates they were expected to and did donate some of their services. There was no agreement with the several carpenters as to the extent of the donated services; each gave free time as he found to be convenient and when he was not otherwise employed. The work at all times was under the supervision of a foreman who directed the workmen and who was obeyed by them. This was true with respect to the work on Saturdays when the men were not being paid, as it was on other days. No work was done except under the supervision of the foreman. Mr. Smith did extensive work on the church for which he was paid, and a substantial amount of work on Saturdays and other days, for which he was not paid. He was injured on a Saturday by a fall. The foreman had sent him up to install molding around the spires, and it was in this work that he fell.