Lacoe v. Industrial Accident Commission

LANGDON, J.

This is a petition by an employer to review an order of the Industrial Accident Commission awarding compensation to an employee.

R. D. Lacoe, the employer and petitioner herein, was the owner of a thirty-acre tract of land in San Diego County. Part of the property was occupied by a residence, an employee’s house and a garden. The rest was devoted to agricultural purposes. John Swanson and his wife were hired as general caretakers. Mrs. Swanson was to do the housework and John Swanson the outside work. In the latter’s testimony we find the following statement: “My duties were to do farm work, put in the crop when it was the season, and do garden work, and carpenter work which was specified, and that was what I had been doing mostly, carpenter work and trimming trees and taking care of horses.” Lacoe testified that he hired Swanson and his wife because he wanted somebody to take care of the place, so that when he came there “it would be running”, and “of course that necessitated making a garden and cleaning up the place, and also there was work that would be necessary on it, like all country homes”. He wanted Swanson to build fences, trim trees and brush, and, in short, “to do anything that I do”.

Shortly after he was hired, while attempting to cut off a limb of a tree, Swanson fell from the tree and was injured. The commission found that the applicant, “while employed ... as a gardener . . . sustained injury arising out of and in the course, of said employment ... ”, and made an award of compensation.

[84]

Certain employments are expressly excluded from the benefits of the Workmen’s Compensation Act, although a procedure is provided by which the employer and employee thus excluded may jointly elect to come within the act. (Workmen’s Compensation Act, sec. 70; Deering’s General Laws, Act 4749, p. 1755.) Prior to 1927, among the excluded employments were “farm, dairy, agricultural, viticultura! or horticultural labor”. (Workmen’s Compensation Act, sec. 8[a].) In 1927, these types of employment were to a large extent brought within the act by the following amendment: “Any employer and his employees engaged in farm, dairy, agricultural, viticultural or horticultural employments or in stock or poultry raising, not subject to the compensation provisions of the ‘Workmen’s Compensation, Insurance and Safety Act of 1917’, as amended, shall, from and after the date this act takes effect, be