Perguica v. Industrial Accident Commission

29 Cal.2d 857 (1947) MANUEL PERGUICA et al., Petitioners,

v.

INDUSTRIAL ACCIDENT COMMISSION, RUTH WALKER et al., Respondents.

Sac. No. 5826. Supreme Court of California. In Bank.

Apr. 1, 1947. Leonard, Hanna & Brophy and Donald B. Brophy for Petitioners.

R. C. McKellips, Edward A. Sarkisian and John A. Rowe, Jr., for Respondents.

SPENCE, J.

Petitioners seek annulment of an award based upon the death of one Dallas Walker, who was fatally injured while transporting scaffolding to a house which petitioner Manuel Perguica was having built and on which the deceased was to do the lathing. In challenge of the jurisdiction of the respondent commission to make such an award, petitioners urge: (1) That Walker was an independent contractor but (2) even if he were an employee of Perguica, the injury was not one arising out of and occurring in the course of the employment. Since the record sustains petitioners on the first issue, the second need not be here considered.

There is no dispute as to the facts. Perguica, a farmer, was having a house constructed on his farm. He hired men on a daily wage basis to do the carpenter work, but he became dissatisfied with such arrangement because it permitted too much "loafing around ... on [his] pocketbook." After that experience with the carpentry, Perguica entered into a contract with one Witmer for the plastering to be done for a lump sum payment. But Witmer could not proceed with his work until wire netting or screening was attached to the outside of the house to serve as a lathing for the plaster. Accordingly, Witmer brought Walker, a lather by occupation, to the farm and introduced him to petitioner as "the fellow to do the job; to put [up] the wires." Walker agreed to do the wiring for "fifteen cents per yard" and on that basis he "got the job." Perguica knew nothing about lathing and did not discuss any of the details of the work with Walker; but just took Witmer's word that Walker "was a good worker" and that the quoted price was the general charge in that locality. Perguica "was expecting" that Walker would "begin on Thanksgiving Day" but that he would work as he pleased. Payment was to be made after the work was done, the amount [859]