Payne v. Industrial Accident Commission

[659]

CASHIN, J.

A proceeding in

certiorari

to review an award made by the Industrial Accident Commission to respondent J. A. McCullough.

The petitioner was the proprietor of a barber-shop in the city of Stockton, and respondent McCullough at the time of the injury for which he sought compensation was conducting a bootblack-stand on the premises occupied by petitioner. Respondent paid no rental for the privilege of conducting the stand, but in lieu thereof rendered services to petitioner as a porter in the latter’s shop. It appears from the testimony that it was respondent’s duty to sweep the shop in the morning and evening and on Sundays in addition to the sweeping to clean the mirrors and other articles therein. Respondent on Sunday, June 13, 1926, while engaged in removing certain linoleum from the floor of the shop received an injury which resulted in a partial loss of his sight. The Commission found that respondent was in the employ of petitioner, that the injury occurred in the course and arose out of the employment, and awarded compensation. Petitioner contends that the evidence does not support the findings and that consequently the action of the Commission was without and in excess of its jurisdiction.

The testimony shows that on the morning of the accident both petitioner and respondent were present at the shop and that the latter was told by petitioner that it was his intention to remove the linoleum. During the temporary absence of petitioner the work was commenced by respondent and was conducted by both when petitioner returned, the injury occurring during the absence of the latter. Respondent testified that he was not expressly requested to do or to assist in the doing of the work, and that the service was rendered as an accommodation to petitioner.

The court, in reviewing awards of the Commission, is not acting as a court of appeal

(Southern Pacific Co.

v.

Industrial Acc. Com.,

177 Cal. 378 [170 Pac. 822]), and is without power to determine the weight to be given the evidence