National Auto. Ins. Co. v. Indus. Acc. Com.

11 Cal.2d 689 (1938) NATIONAL AUTOMOBILE INSURANCE COMPANY (a Corporation), Petitioner,

v.

INDUSTRIAL ACCIDENT COMMISSION and J. J. PACKER, Respondents.

S. F. No. 15938. Supreme Court of California. In Bank.

July 29, 1938. S. Norman Hays for Petitioner.

Everett A. Corten for Respondents.

WASTE, C.J.

This is a petition to review an award of the Industrial Accident Commission.

On May 25, 1936, L. E. Sherbert was operating a restaurant under the fictitious name of "Dixie Club Restaurant". J. J. Packer was employed as dishwasher. On that date a policy of workmen's compensation insurance was issued by petitioner, National Automobile Insurance Company, in the name of "L. E. Sherbert, an individual, doing business as Dixie Club Restaurant". On August 19, 1936, Sherbert took in Dixie Henry, his sister, as a partner, the business continuing in name as before. On August 23, 1936, Packer sustained a compensable injury. The commission made an award against petitioner as insurer of Sherbert, and against Dixie Henry, as an uninsured employer, in the total amount of $185.28.

Petitioner attacks the award on the ground that the policy did not cover the liability in question. Reliance is placed on the following provision of the policy: "If this policy is issued to an individual, it shall cover only his liability as an individual employer and not any liability as a member of a copartnership or any other organization." Petitioner's theory is that it insured the liability of Sherbert, an individual; that the liability here involved is that of the partnership of Sherbert and Henry; that liability is imposed upon Sherbert because he is a "member of the copartnership" composed of the named persons, and hence that such liability is not covered by the policy.

[1] We see no escape from the logic of petitioner's reasoning. It was found by the commission that the injuries were incurred while the employee was in the employ of the assured and his sister doing business under the above-mentioned fictitious name. This finding can only be construed as a finding of employment by the partnership made up of the named persons. There can be no doubt, therefore, that under the circumstances here present, liability fastened upon the assured solely because he was a "member of a copartnership" [691]