Zimmerman v. Industrial Accident Commission

KNIGHT, J.

This is a proceeding in

certiorari

to review a decision of the Industrial Accident Commission absolving the State Compensation Insurance Fund as insurance carrier from all liability for the payment of an award made by the Commission to an injured employee, and holding the employers alone responsible therefor.

The facts are as follows: Zimmerman, one of the petitioners herein, was engaged in the business of painting, decorating and paper hanging. He conducted the business under the fictitious name “Royal Paint and Wall Paper Company”, and was insured by the State Compensation Insurance Fund against all liability arising under the Workmen’s Compensation Act (Stats. 1917, p. 831), by a policy issued to him on March 4, 1930, naming “Sam Zimmerman (an individual) doing business as Royal Paint and Wall Paper Company” as the insured. About September 1, 1930, he took in Stern as a partner and they continued to operate the business under the same name and with some of the same employees. The insurance carrier was not notified of Stern’s association in the business., About ten days later and on September 10, 1930, one of their painters,

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named Andronoff, who had been in the employ of Zimmerman up to the time the partnership was formed, fell from a building and was severely injured. He applied for and was awarded compensation, but as stated, the Commission absolved the State Compensation Insurance Fund from all liability for the payment thereof, holding that under the foregoing facts the employers were uninsured.

We are of the opinion that so far as Stern is concerned the Commission’s decision should be sustained, because, as will be noted, the policy designated Sam Zimmerman, an individual, as the insured; and under no possible theory, therefore, can the fact that Stern afterwards entered into a partnership with Zimmerman operate as a matter of law to extend the terms of the insurance contract to cover Stern, individually or otherwise.

But as to Zimmerman the situation is entirely different, and in view of the law as declared in the recent case of

First Nat. Trust & Sav. Bank