Ocean Accident & Guarantee Corp. v. Industrial Accident Commission

CONREY, P. J.

C. H. Dillman, claiming as an employee of George C. Sehuldt, made application to the Industrial Accident Commission for an award of compensation for disability resulting from an accident in which, he was injured while engaged in service for-his employer. An award was

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made in favor of Dillman and against The Ocean Accident and Guarantee Corporation, Ltd. (hereinafter called the corporation), as insurance carrier of the employer. In this proceeding by writ of review the Corporation contends that the Commission was without jurisdiction to make said award.

The evidence shows that the accident and injury to Dill-man occurred while he was working for Schuldt. ■ It arose out of and in the course of the employment. If the insur-' anee policy covered the employment of Dillman by Schuldt, the award is valid; otherwise, the award should be annulled.

Prior to October 26, 1927, Schuldt and Dillman entered into an oral agreement of partnership as building contractors. Schuldt had obtained a contract for the construction of a public school building and this contract, although held in the name of Schuldt, was by the partners understood to be included in their business. On October 26, 1927, they made application to the corporation for an indemnity policy to cover personal injuries sustained by employees. In the declarations of their application they represented themselves to be a copartnership, and named themselves, George C. Schuldt and C. H. Dillman, as the members of the partnership. In the policy issued pursuant to said application (and bearing the same date as the date of the application), it was provided that “if this employer is a partnership, this policy shall not apply to any member ... of such . . . partnership except those named in the Declarations with disclosures of the annual amount of wages,” etc. The declarations did not contain any such exception.

In the testimony of Mr. Dillman before the Commission he admitted that he told the agent of the Corporation that he and Schuldt were partners and further admitted that when the policy was written up he knew that it was written in his name as well as that of Schuldt; but he also claims, and he so testified, that subsequently and before he went to work on the job he and Schuldt agreed to dissolve the partnership and further agreed that he would work for Schuldt on the school building at a stated wage. The work under the building contract was commenced early in November, but the brickwork on which Dillman was employed did not commence until the second day of December. The accident to Dillman occurred in the latter part of January, 1928. Dillman admitted that he did not at any time prior