Provensano v. Division of Industrial Accidents

SPENCE,

J.—Petitioners seek annulment of an award of the Industrial Accident Commission granting compensation to respondent Horner for an injury to his eye while engaged in chopping and cording wood. The only question presented upon review is whether Horner was an employee of petitioner Provensano or an independent contractor.

In February, 1930, Provensano entered into a written contract with Horner under which Horner agreed to cut and pile on Provensano’s ranch not less than two hundred cords of wood at $3.50 per cord. Thereafter Horner, together with his son and two other men, proceeded to the

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ranch and began operations under the contract. The arrangements with the three other men were made by Horner. The men furnished their own axes and wedges and Provensano furnished the saws. Shortly after starting to cut and pile the wood under the written contract it was ascertained that there was not enough wood on the ranch to make two hundred cords. Thereupon it was agreed that the contract be canceled, Provensano telling the men, “Go ahead and cut wood, I will pay you three dollars and fifty cents a cord”. Thereafter Provensano paid each man for the wood cut and piled by him at the agreed rate. Provensano made only a few visits to the ranch during the entire time the men were working, on which visits he merely showed the men the ridges on which to cut and measured the amount of wood cut and piled in order to determine the amount due. The men worked whenever they pleased and engaged in hunting and fishing on several occasions. In the words of the petitioner, “Each man was his own boss.” The foregoing are the material facts disclosed by the evidence and it is conceded that “the testimony does not indicate that any supervision was attempted by Provensano, but he allowed the men to carry the work along on their own time, merely paying them for the quantity cut and piled”.

Petitioners rely upon a line of authorities holding wood-choppers to be independent contractors and not employees under similar circumstances.

(Parsons

v.

Industrial Acc. Com.,

178 Cal. 394 [173 Pac.