Ocean Accident & Guarantee Corp. v. Industrial Accident Commission

CASHIN, J.

Certiorari to review an award by the Industrial Accident Commission.

Frank I. Brazel, now deceased, was the son of Patrick Brazel, who applied to the Commission for the adjustment of a claim for compensation based upon the fact that the death of the deceased was caused by an accidental injury arising out of and in the course of his employment. The deceased was employed as the driver of a delivery truck, and at the time of the injury was engaged in the delivery of parcels for Raphael Weill & Co., the insured, under an agreement between the latter and William Froehlich, who was also joined as a defendant. An award was made by respondent in favor of the applicant and against the insured; and it is contended by petitioner, which was the insurer, that Froehlich was a joint employer of the deceased, that the award should also have been against him, and further, that the applicant was not a dependent.

By the terms of the agreement mentioned Froehlich leased to the insured certain trucks which were used for delivery purposes, one of which was being driven by the deceased at the time of the injury which caused his death. The agreement provided for the payment to Froehlich of certain lump sums monthly for the use of the trucks and for his services as superintendent of deliveries, from which sums, however, were to be deducted the wages of the drivers and certain other expenses, it being expressly provided “that the first party (the insured) shall engage all drivers employed to operate the said trucks and shall pay their salaries, and shall have absolute control of the operation of said trucks, and shall designate the routes to be covered -by the same, and any superintendence or direction undertaken by the second party

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(Froehlich) shall be as an agent or employee of the first party and not as an independent contractor.” While at the first hearing in the proceeding it was stipulated between the applicant and Froehlich that the latter was the employer of the deceased the Commission was not bound thereby (Workmen’s Compensation Insurance Act, sec. 19b); and, as now claimed by it, the conclusion that the relation existed was based upon an obvious mistake by the parties, and the provisions of the contract, together with the testimony, fully support the finding that the deceased was employed by the insured and not by Froehlich.