Rosedale Cemetery Ass'n v. Industrial Accident Commission

WORKS, J.,

pro tem.

It is sought by the petitioner to annul an award of the respondent whereby one Armstrong was allowed compensation for injuries suffered by him while in the rendition of certain services to the petitioner. Arm

[707]

strong was skilled in the work of blasting and in the handling of explosives used in the conduct of blasting operations, and was engaged by the petitioner to remove from its cemetery property, in that manner, certain concrete foundations which had formerly supported some discarded water-tanks once used in connection with irrigation. It was in the prosecution of this work that Armstrong was injured.

The respondent found from the facts before it that Armstrong was an employee of the petitioner, and this finding is assailed as being without support in the evidence, the contention of the petitioner being that the injured man was an independent contractor in the performance of the service for which he had been engaged. There was no written agreement evidencing the employment of Armstrong. He testified that the conversation by which he was engaged took place between him and the superintendent and the secretary of the petitioner. These officers desired Armstrong to state to them the probable cost and duration of the work in contemplation. He answered that it could be done in a week and that the expense would depend upon the cost of powder. This figure he was asked to procure and he was also to order the requisite amount of the explosive for the work. Under an ordinance of the city of Los Angeles it was necessary that a permit be secured from the city authorities allowing the work of blasting to be done. Armstrong was told by the superintendent to procure this permit, and he did so. Armstrong testified, as to his status in doing the work, as follows: “And then as to my part of the work it was talked of my taking a contract and I said I couldn’t take a contract because I didn’t know what I was up against, but that I would go out there and work for five dollars a day to take it out, and that they were to furnish me help to dig out what digging was to be done and give all the help necessary so as to be able to take it out within a week’s time.” Under this phraseology, it is a matter of some difficulty to determine the nature of Armstrong’s employment. There are some features of the statement indicating that he was to be only an employee, others tending to show that he was engaged as an original contractor. It does appear, however, that he was to be paid by the day, and that there were no restrictions placed upon the power of the employer to direct and control his operations at will. The undisputed evidence is that the petitioner actually exercised no direction or control over the