Brown v. Industrial Accident Commission

LAWLOR, J.

The Industrial Accident Commission found that Charles E. Skidmore, the applicant, was injured by accident near Clover dale, California, while in the employment of the petitioner, Herbert F. Brown. By the writ of review the petitioner presents a single question for consideration—Are the facts found sufficient to establish between himself and the applicant the relationship of employer and employee? The details concerning the employment are stated in special findings of fact which were made by the commission upon his request. It was found: “That the circumstances surrounding the employment of applicant at the time of his injury were as follows: That the applicant had been in the employment of the defendant for over two years as salesman for the selling of certain Contra Costa real estate properties owned and which were being sold by the defendant through agents for his own benefit; that in payment for his services as salesman the applicant was promised, in a certain written contract, a commission of twenty per cent of the selling price of each lot sold, this commission to be deducted from each installment due upon each lot, as paid: that the applicant was further to retain twenty dollars ($20) upon each initial payment of twenty-five dollars ($25) upon lots sold, such moneys to be used for traveling and living expenses, but to be accounted for as a part of the whole commission due upon such sale; that all future commissions were to terminate, as to any lot, upon the forfeiture of the contract for the purchase of that lot; that the applicant furthermore contracted to devote his whole time and energy to selling the lots of the defendant and further agreed not to sell any other Contra Costa réal estate for any other person without the consent of defendant, and for a violation of such provision it was provided that the applicant was to

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obtain the balance of his commission on lots sold thereafter only when such lots had been fully paid for, instead of receiving his share of each payment as made; that it was furthermore provided in said contract of employment that commissions earned by the applicant were not to be transferable or assignable by the applicant without the written consent of the defendant; that the defendant exercised the right to designate the territory in which applicant should work for the sale of defendant’s real estate properties; that defendant supplied applicant with circulars and instructed him in the manner of selling his properties, required applicant to report all proposed sales and to receive his (defendant’s) sanction to the closing of sales of defendant’s properties, required applicant to make sales according to terms and conditions described by defendant, wrote applicant general letters of instruction, advanced applicant his expenses at various times, but exercised no further or direct control over applicant’s time or the manner of doing his work; that the applicant was steadily engaged in defendant’s business for nearly two years without selling real estate for any other party during that time; that the defendant had a large number of similar contracts of other salesmen with varying degrees of attention paid by said salesmen to the rendering of services under such contracts; that the applicant was directed by the defendant in May, 1914, to go to Ukiah, California, to sell the defendant’s property at this place and was directed by the defendant to accompany one Wellock to Ukiah by automobile, said Wellock to introduce the applicant and to aid him in becoming familiar with the community and people; that while on said trip by automobile to Ukiah to commence his labors with said Wellock, the applicant was injured by the wrecking of the automobile, receiving the injuries which form the basis of this proceeding.”