Department of Natural Resources v. Industrial Accident Commission

California Supreme Court Sep 27, 1932 No. Docket No. S.F. 14637.Published

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Holding. The court held that a fish and game warden's representative, whose duties were controlled by the Fish and Game Commission and who was paid by a third party, was an employee of the Commission for the purposes of workers' compensation.

Issues

Whether the applicant was an employee of the Fish and Game Commission or the private party whose fishing activities he was supervising.
Whether the Fish and Game Commission had the legal authority to appoint the applicant as an employee.
Whether the applicant was excluded from the Compensation Act as a public official serving without pay.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The determinative feature in ascertaining whether the employer-employee relationship exists in any given case is the degree' of control exercised by the alleged employer over the alleged employee.”

“There can be no doubt that the right of authoritative control rested solely and exclusively with the Pish and Game Commission.”

“The mere fact that the Kaysers paid Means his wages is not determinative of the question as to who was his employer.”

THE COURT.

Petitioner, the Department of Natural Resources of the State of California, Division of Fish and Game, seeks by this

certiorari

proceeding to annul an award of the Industrial Accident Commission, directing petitioner to pay compensation to one Joseph L. Means. The basis of the award is that at the time the injuries complained of were received Means was an employee of petitioner, working in the course and scope of his employment. No question as to the extent of the injuries or the amount of compensation is presented in this proceeding.

Petitioner is a department of the state government (Pol. Code, sec. 373) and for the purposes of administration is organized into divisions, one of which is the Division of Fish and Game. (Pol. Code, sec. 373-a.)

The facts giving rise to this controversy are not materially in dispute, and are as follows:

One Mabel Kayser desired to commercially seine Ellis Lake, located within the city limits of Marysville, for carp and other commercial or “rough” fish. Her divorced husband, who admittedly at all times was acting as her agent, approached the mayor and members of the city council of

[436]

Marysville, and secured their consent to seining the lake provided a permit was secured from the Division of Fish and Game. Mr. Kayser thereupon secured from the Division of Fish and Game, through N. B. Scofield, chief of the bureau of commercial fisheries, a permit running to the city manager of Marysville to “use nets for the purpose of removing carp and other rough fish from Ellis lake”. The permit expressly provided “that fishermen who may engage in the seining of carp and other rough fish for sale, must first procure a commercial fishermen’s license, and it is further provided

that a representative of the Fish and Game Commission must be present when seining operations are under way

and that the game fish which may be caught are to be taken care of, either by returning them to the water unharmed or by transplanting them

under the supervision of the representative of the Fish and Game Commission.

Department of Natural Resources v. Industrial Accident Commission

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THE COURT.

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