Cooper v. Industrial Accident Commission

RICHARDS, J.,

pro tem.

This is a petition for a writ of

certiorari

by which we are asked to review the action of the Industrial Accident Commission in its order denying relief to the petitioner herein, who was the applicant before it. The facts of the ease are undisputed and present hut one question for our determination. The applicant, Eva L. Cooper, is the widow of one W. L. Cooper, deceased. Said

[686]

W. L. Cooper was at one time the owner of certain mining claims located in the county of Inyo. In the month of October, 1916, he took part in the organization of a mining partnership formed for the purpose of taking over his said mining claims, of which partnership he then became, and up to his death continued to be, one of the members. Within a month or so after the formation of this partnership its superintendent made certain reports as to conditions at the mine, which led the members of the firm to request Mr. Cooper, who was a practical mining engineer,' to go to the mine and resample it and verify certain of his former reports, upon the strength of which the property had been taken over by the partnership. It was agreed that his expenses on the trip should be paid by the firm, and also that he should be allowed five dollars per day for his time, the latter amount to be paid out of the proceeds of certain shipments of ore which the firm was about to make. Cooper went to the mine pursuant to this arrangement, and while there was injured through the operation of a bucket tram owned and operated by the firm of which he was a member, from which injuries he died. His widow thereupon applied to the Industrial Accident Commission for relief against the partnership, and its insurer, the Ocean Accident and Guarantee Corporation. Upon the hearing the commission denied relief to the applicant upon the sole ground “that at the time of his injury and death said W. L. Cooper was a member of said copartnership, and therefore was not an employee of such copartnership within the meaning of section 14 of the Workmen’s Compensation, Insurance and Safety Act, and this commission is without jurisdiction over the parties hereto.” This presents as the sole matter for review the following question: “Does a member of a partnership performing services for it under an agreement such as that here presented come within the terms of the Workmen’s Compensation Act so as to entitle his widow to compensation from the firm of which he is a inember, and from its insurer, against injuries to its employees? In other words, was the deceased an employee of the firm of which he was a member, within the intent and meaning of the Workmen’s Compensation Act?