Hubbert v. Industrial Accident Commission

GOULD, J.,

pro tem.

In a proceeding before the Industrial Accident Commission petitioner’s claim for a death benefit based upon the death of her husband, Leo IT. Hubbert, was denied. By writ of review she seeks to annul the commission’s findings and award.

A. 0. Miller, doing business as A. 0. Miller Company, entered into a written contract to waterproof a concrete vat for the Aztec Brewing Company of San Diego. By the undisputed testimony before the commission Hubbert was employed by Miller, under the latter’s control, to supervise the job and assist in the manual labor, at an agreed price of $7 per day plus expenses and plus one-half of the profits. All the positive evidence as to the nature of the relationship between Miller and decedent in so far as the Aztec job was concerned was that Hubbert was an employee. This was not contradicted by any direct evidence. There was a showing, however, that the two men had been engaged in partnership jobs at various times over a period of fifteen years, and that at one time they were associated together as the Angelus Waterproofing Company. The commission concluded that as to the Aztec job Hubbert was not an employee but a partner of Miller. This conclusion is attempted to be sustained on this application upon the argument that the commission could not give full credence to the testimony, on account of the relationship which was shown to exist between the two men, particularly their previous partnership enterprises.

There is, of course, no dispute as to the elementary proposition that the commission is the exclusive judge as to the credibility of the witnesses and the weight of evidence before it, and no finding of fact will be disturbed if there is any substantial evidence to support it. But if there is no evidence to support a finding the proceeding becomes subject to the court’s review.

(Market Street Ry. Co.

v.

Indus

[173]

trial Acc. Com.,

193 Cal. 178 [224 Pac. 95].) It has been held that uncontradicted evidence, not inherently improbable, may not be arbitrarily rejected by the courts