White v. Industrial Accident Commission

WASTE, J.

This is a proceeding in review to annul an award of the Industrial Accident Commission. The petitioner, H. White, was engaged in the construction of a summer home at Middletown, in Lake County, during the summer of 1921. The work was done by day labor under the supervision of a foreman, Benjamin Althof, employed by the petitioner. During the entire period of construction, Hans

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Johnsen, the applicant before the Industrial Accident Commission, and one of the respondents here, a former sailor and stevedore, was employed about the place as a laborer or a sort of “man of all work.” He was so engaged during the latter part of September, at which time Mr. White, becoming dissatisfied with the progress of the work, decided to suspend all building operations and to wait until spring for its completion. He reconsidered this intention, however, and entered into a contract in writing with Althof, by the terms of which the latter agreed to complete all the carpenter work and rough concrete work required in the erection of the building for the sum of $850. Before making this contract, White had made arrangements with S. Sapero, a painter residing in Oakland, to do the painting on the job, at the rate of eight 'dollars per day, the owner to furnish the materials. Sapero did all the painting he could on the job, but, as the roof was not completed, he was laid off until it should be ready and was told to come back later on and complete that work.

There is a contradiction in the record as to when Althof began work under. his contract. He testified he “took a few days off . . . but kept around looking after the work; that was outside the contract.” Other testimony would tend to indicate that he was doing work called for by his agreement. It is not certain, therefore, that Althof was not acting for petitioner when, a few days later, he directed Johnsen to paint the roof, which had in the meantime been completed. Johnsen proceeded to do the work as directed. While working on the roof, he slipped and fell to the ground, breaking his leg. It was for this injury that he applied to the Industrial Accident Commission for compensation. White, the petitioner here, his wife, and Althof were made defendants. The Commission found that Johnsen was employed by White at the time of the injury, and was working under the direction of Althof, who, it determined, was merely an agent of White in the matter. It found that the injury occurred in the course of, and arose out of, Johnsen’s employment, and made an award in his favor and against petitioner. Mrs. White and Althof were dismissed from the proceedings. It is this award which the petitioner seeks to have annulled by this proceeding.