Dep't of Water & Power of L.A. v. Indus. Accident Comm'n

CURTIS, J.

This proceeding was instituted to annul an award of the Industrial Accident Commission in favor of

[639]

Lillia B. Winkler, the surviving widow of Mark A. Winkler, who met his death while operating a Diesel gasoline power shovel owned by the Mono Construction Company, which at the time of Winkler’s injury was rented to the Department of Water and Power of the City of Los Angeles under a written contract between the said construction company with said department. The award was against the Department of Water and Power and the National Automobile Insurance Company, the insurance carrier of the Mono Construction Company. The Department of Water and Power was self-insured with respect to liability imposed by the Workmen’s Compensation Act. The commission found that the deceased while employed as a gasoline shovel operator on November 4, 1932, by L. M. Post and R. D. Cavalery, a copartnership, doing business as Mono Construction Company, his general employer, and Department of Water and Power of the City of Los Angeles, his special employer, sustained injury arising out of and occurring in the course of his employment when he was struck by a fall of earth, the injury proximately causing his death on the same day. It also found that at said time the Mono Construction Company’s insurance carrier was the National Automobile Insurance Company and that the Department of Water and Power of the City of Los Angeles was self-insured.

The petitioner herein is the Department of Water and Power of the City of Los Angeles and seeks to annul the award of the commission based upon said finding against said Department of Water and Power upon the ground that the evidence is insufficient to sustain the finding of the commission that said Department of Water and Power was the special employer of Winkler at the time of the death of the latter.

The evidence before the commission showed that Mark A. Winkler was employed by the Mono Construction Company, a copartnership consisting of L. M. Post and R. D. Cavalery. While so employed the Mono Construction Company, hereinafter referred to as the Construction Company, entered into a written agreement with the Department of Water and Power of the City of Los Angeles, hereinafter referred to as the Department, whereby the said Construction Company agreed for a certain fixed sum to furnish a certain number of Diesel shovels, with operators and helpers