McDonagh v. Industrial Accident Commission

JAMES, J.

Return has been made upon an alternative writ of review issued herein. Petitioner was injured by the overturning of a conveyance in which he was riding, and he applied to the respondent Industrial Accident Commission for an order directing certain allowances to be made to him under the provisions of the act of the legislature. The commission found in favor of the petitioner as against J. Farrell MacDonald, but determined by its findings that no contract of employment existed between petitioner and the American Woman Film Company at the time of the accident. Petitioner was not satisfied with the finding exonerating the Film Company and prosecuted this writ for the purpose of having reviewed" the evidence heard by the commission. It is claimed that the evidence is insufficient to support the finding in favor of the Film Company, and that the uncontradicted evidence established that at the time petitioner received the injuries for which compensation was asked he was regularly pursuing his work under contract of employment with the company

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named. Of course it will be conceded at the outset that, in order to allow petitioner’s contention, it must appear from the evidence without any conflict whatsoever that the employment existed as claimed. The testimony of the petitioner as submitted to the commission was that he had been first employed by one Parker, the general manager of the Film Company, as publicity man; that the company desired to produce a certain picture the scenario of which had been written by Mrs. Emerson, president of the Film Company; that as the company desired a man competent to direct and oversee the production of the picture, he (the petitioner) introduced J. Farrell MacDonald to Mrs. Emerson, and that a contract was entered into by which MacDonald undertook to arrange the scenes and supervise the taking of the picture. By this contract, which was shown in evidence, it appeared that, so far as the work of taking the picture was concerned, MacDonald was to act in the capacity of an independent contractor and for a certain fixed sum have the picture taken, furnishing all necessary appurtenances and assistants. Petitioner testified that his arrangement with Parker provided for a compensation of fifty dollars per week for his services as publicity man, and that after the making of the contract with MacDonald, Parker, general manager of the company, requested MacDonald to employ petitioner as one of his assistants in the taking of the picture, which MacDonald did, agreeing to pay therefor the sum of fifty dollars per week. This latter compensation was regularly paid, so petitioner testified, by MacDonald while the work of taking the scenes was in progress. On the day the accident occurred the petitioner, together with other members of the company engaged in the making of the picture, were returning from a “location,” or place where they had been at work with the camera. For some reason the conveyance in which they were riding was overturned and petitioner was thrown out, suffering quite severe injuries, by reason of which he was confined to the hospital for a considerable length of time thereafter and several operations were required to be performed upon one of his limbs. From the statement of the evidence now given it appears that if the petitioner at the time of the accident was performing work solely within the requirements of his engagement with MacDonald, the Film Company would not be responsible for any injuries suffered by him, for the reason that, as before noted, MacDonald was