Blood v. Industrial Accident Commission of State of California

CONREY, P. J.

This is a proceeding in

certiorari

to review an award made by the Industrial Accident Commission.

[275]

The petitioner, Frank Blood, owned a two-story frame building at Huntington Park, in Los Angeles County, consisting of a storeroom below and two flats above, one of the flats being occupied by the owner. Blood employed one W. F. Heck, a house painter by trade, to apply two coats of paint to the house. Blood was to furnish the painting materials and pay Heck at the rate of $3.50 per day. The employment was not for any definite period of time, but the evidence shows that the work would reasonably have been done within two weeks. During the first day of his employment Heck was accidentally injured and suffered a temporary total disability, on account of which an award in his favor was made by the commission.

On behalf of petitioner it is contended that in making any allowance whatever the commission acted in excess of its jurisdiction, because the employment of the applicant for compensation was “both casual and not in the usual course of the trade, business, profession, or occupation of his employer.” (Workmen’s Compensation, Insurance, and Safety Act, see. 14, [Stats. 1913, p. 284].) We think it must be conceded that the employment was not in the usual course of any business of the employer. There is absolutely no evidence that Blood was engaged in any business which in its usual course, if at all, called for the employment of house painters.

Under the British Workmen’s Compensation Act of 1906, the word “workman” “does not include a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer’s trade or business.” As to both clauses within the quotation, it will be observed that there is a material difference between the language used in the British act and that of the California statute. Commenting upon a very similar difference between the Massachusetts and the British acts, the supreme court of Massachusetts has said that this difference in phraseology must be regarded as deliberately designed, and that its effect is to narrow the scope of the Massachusetts act as compared with the English act. “No one whose employment is ‘casual’ can recover here, while there one whose employment is ‘of a casual nature’ comes within the act, provided it is also for the purpose of the employer’s trade or business. It is possible that a distinction as to the character of the employment may