Massachusetts Bonding & Insurance v. Industrial Accident Commission

SPENCE, J.

Petitioner seeks the annulment of several awards made by the respondent commission in favor of the remaining respondents.

The several applicants before the commission had suffered injuries in a fire in a night club known as the Club Shamrock. Said applicants were employed either as entertainers or in other capacities at said night club. Petitioner claimed that said applicants were engaged in illegal employments. The commission stated in its findings with respect to the case of respondent Dorothy Cook that “No finding is made upon the issue of illegal employment for the reason that it appears that the employee would not be excluded thereby from coverage, even though such employment had been illegal.” In each of the other cases, the commission made a finding that “The evidence is insufficient to establish that applicant’s employment was illegal.”

[585]

The claim of illegality of employment now appears to be directed solely against those employed as entertainers. It is based upon the fact that the evidence showed that it was the duty of said entertainers, while not engaged in singing or dancing in the floor show, to act as “hostesses” and to encourage the patrons to purchase alcoholic beverages. In the case of Dorothy Cook, the evidence clearly showed that she was so employed on a commission basis, receiving a percentage of the amount spent for beverages by the patrons for whom she acted as “hostess”. In the eases of the other entertainers, the evidence was not so clear, but owing to the conclusion that we have reached, we deem it unnecessary to discuss such testimony.

Section 303 of the Penal Code provides that it shall be unlawful

“to employ

upon the premises where the alcoholic beverages are sold any person for the purpose of procuring or encouraging the purchase or sale of such beverages,

or to pay

any person a percentage or commission on the sale of such beverages for procuring or encouraging such purchase or sale”. (Italics ours.) It will be noted that said section is directed at the acts of the employer and not at the acts of the employee. No statute has been called to our attention which expressly makes it unlawful for the employee to accept such employment or to accept such payment.