Fidelity & Casualty Co. v. Industrial Accident Commission

YORK, J.

On writ of review of a finding and award by the Industrial Accident Commission rendered in favor of

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one Clyde Rhone, and against petitioner as insurance carrier of A. M. Thompson.

The sole question raised is whether or not Clyde Rhone was an employee of Thompson, alleged to be the contractor in charge of the work. It is admitted that Thompson was a supervising contractor and “builder,” the terms of whose contract are hereinafter stated. He denies that he ever employed Clyde Rhone and there is evidence to show that he had no direct knowledge of the, employment of Rhone until he received a time-card and made out a check in Clyde Rhone’s favor for the amount of this card.

At the time of the injury Rhone was working on certain iron grill work and was injured by a piece of steel or iron flying from the hammer and anvil to his eye and lodging in the eye, which later necessitated the removal of the eye itself.

Petitioner’s claim of nonliability rests upon the further claim that Rhone was not an employee of Thompson, and that Louis E. Plummer, the owner of the job at Fullerton for which the iron work was being prepared, was paying Thompson only a fixed sum for his services in building the house, and was furnishing Thompson the money to make payments for material and labor as the work progressed in sums of approximately $1,000 at a time. Although in his answer Thompson denies that the applicant in the proceedings before the Industrial Accident Commission had received a check for the sum of $15.41 “or for any other sum from this answering defendant as his employer, ’ ’ yet Mr. Plummer testified at the hearing: “Q. (By referee.) How did this grill work happen to be turned over to the boys in the structural iron course of the school? A. At my suggestion, to Mr. Thompson. Q. Who" took up the matter with Mr. Hart, you, or Mr. Thompson? A. I took the matter up with him informally; all plans, drawings, etc., were submitted to him by Mr. Thompson. . . . Q. Mr. Plummer, who paid for the materials that went into the iron work on your job? A. Mr. Thompson.” Hart was acting as foreman of this work, under supervision of Thompson.

Mr. Plummer’s testimony as to the contract and its terms is best set forth in the exhibit following, which he testified fully set out the only agreement with contractor Thompson: