New York Indemnity Co. v. Industrial Accident Commission

CONREY, P. J.

Petitioner, the insurance carrier for one O. W. Dorman, has applied for a writ of

certiorari

to review a decision of the Industrial Accident Commission awarding compensation to Richard B. Lennon for injuries received arising out of and in the course of his employment as painter on a building being constructed by Dorman as contractor. Petitioner claims that J. P. Jessel was an independent subcontractor operating under contract with Dorman, and that Lennon was an employee of Jessel and not of Dorman. The sole question is whether or not Lennon while employed as painter on the house in question was an employee of Dorman or was an employee of Jessel and of Jessel only.

The evidence relied upon by petitioner is set forth in his petition. Petitioner maintains that the evidence does not justify the finding that Lennon was in the employ of Dorman, and further contends that the evidence does show without substantial conflict that he was not in the employ of Dorman at the time he sustained the injuries, but was then an employee of Jessel, whose relation to Dorman then was that of an independent contractor; and that in awarding compensation to Lennon against petitioner, the Commission acted without and in excess of its powers.

“ In determining in any given case whether a person was an employee or an independent contractor there are usually present various circumstances which are persuasive to one conclusion, and other circumstances persuasive to the opposite conclusion. But an analysis of the cases makes it plain that the determinative factor is usually found in the solution of the question: Who has the power of control, not as to the result of the work only, but as to the means and method by which such result is accomplished?”

(Fidelity & C. Co.

v.

Industrial Acc. Com.,

191 Cal. 404, 407 [43

[715]

A. L. R. 1304, 216 Pac. 578].) “A workman who is paid wages by the piece or quantity comes within the provisions of the Workmen’s Compensation Act the same as one who is paid by the day. Wages may be measured by time, by the piece, or by any other standard.