Hartford Accident & Indemnity Co. v. Industrial Accident Commission

CRAIG, J.

The respondent Helen C. Shaffer was injured while soliciting prospective purchasers of real estate in the city of Los Angeles, on October 20, 1927, as an employee of the Beeman and Rice Realty Company. She made application to the division of industrial accidents and safety, and after a hearing the Commission awarded $192.50 hospital expenses at $3.50 per day, and allowed the applicant $11.12 per week, beginning October 28, 1927, until the termination of disability or further order of the Commission, and dismissed as to the employer. A motion for rehearing was presented, which was denied, and the insurance carrier, petitioner herein, instituted this proceeding to review said award.

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It appears that the applicant was employed by assistant sales managers of the realty company to solicit prospective buyers of lots in a tract which it was developing, at the agreed sum of $2 for each person whom she might interest in the property and cause to visit the tract, and a commission of one per cent upon any sales she might make. The record is not clear as to the exact time that she had been so employed. She testified that she began work on the 18th of October, 1927, and also that she worked “3 or 4 days”; a representative of the company testified that she worked five days; and the respondent Commission in its briefs recites that she earned “$66.50 during her employment of four or five days.”

It is the contention of the petitioner that Mrs. Shaffer was not an employee, but that she was an independent contractor, and that the evidence does not justify the award. It is conceded that she was not limited to any particular territory in which to work, nor was she furnished by the company with the names of people whom she should interview; and she testified that she “had no specified hours” so long as she did her work and obtained her load for the following day. It appears, however, that she was required to telephone to the main office each morning whether she had prospects or not; that she was not instructed to any great extent, because of her past long experience in selling real estate; that private machines of the company called for her each morning, and she directed them to the residences of her prospects, whom they conveyed to the tract. The manager also testified that a meeting for the instruction of salesmen and solicitors was held each Monday evening, at which attendance was required; that it was not optional with them whether they should attend or not, and that the company held up their checks in the event of absence without good cause. Another of the company’s witnesses testified that a good solicitor would average $20 to $25 per week, and that one working as the applicant did would average at least $22 per week. It was further testified that such solicitors “can’t work for another real estate company while they work for us.”