Gale v. Industrial Accident Commission

RICHARDS, J.

The petitioners, who are the widow and minor children of Kenneth W. Gale, deceased, applied to the Industrial Accident Commission for an award against Mark M. Campbell, Richfield Oil Company, Kinner Airplane & Motor Corporation, and Maryland Casualty Company, a corporation, alleging that Kenneth W. Gale, an airplane pilot, had been billed in an airplane accident at Mines Field, Los Angeles, on September 5, 1929, while engaged in flying an airplane under employment by the respondents in said application. Hearings were had thereon, at the conclusion of which the Commission made its findings and decision denying said application upon the ground that the evidence did not establish that Kenneth W. Gale was the employee of the respondents Richfield Oil Company, Mark M. Campbell, or Kinner Airplane & Motor Corporation, and that the proceeding was not, therefore, within the jurisdiction of the Commission. A petition for rehearing was presented and denied; whereupon the petitioners applied for a writ of review to the District Court of Appeal in and for the Second Appellate District, Division Two, which application was therein denied without an opinion; whereupon the petitioners applied for a hearing before this court, which was granted, and the matter has, upon the record presented before the Industrial Accident Commission, been submitted for decision.

We adopt the statement of the evidence summarized by the petitioners, from which it appears that the facts of the ease are substantially as follows: Kenneth W. Gale, an airplane pilot, was killed in an airplane accident at Mines Field, Los Angeles, upon the date above stated, leaving as his dependents the petitioners herein. The respondent Mark M. Campbell was a designer and builder of airplanes, and in the summer of 1929 had constructed an airplane which he believed capable of establishing new aeronautic records, and being in the need of financial assistance to attempt flights which might produce such records he went to the

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Richfield Oil Company for aid. He there interviewed Mr, Dudley Steel, an official of that company, setting forth what he claimed to be the merits of his airplane, stating that he needed money to pay pilot’s wages and other expenses. He was then informed by Steel that if the airplane and pilot met with his approval the Richfield Oil Company would give Campbell the assistance required. A written agreement was entered into between the Richfield Oil Company and Campbell, wherein the latter agreed that he would use the products of the Richfield Oil Company, delivery of which he accepted, for the purpose of making an attempt to break the existing áltitude record in a Campbell supersport monoplane, and for such other test flights prior to said attempt as might be deemed necessary. He further agreed that in consideration of the delivery to him of such products he would allow said company the privilege of using his name or testimony for advertising in whatever manner the said company might see fit to employ, and that he would use no other fuel or lubricant than those of the Richfield Oil Company in connection with any record-breaking flight he might attempt within the period of six months from the date of said agreement. Nothing was said therein as to the employment or payment of any pilot by or on behalf of the Richfield Oil Company. Upon executing this agreement Campbell was introduced to one Petrie, who was an assistant to Steel, and because of the fact that Steel was about to leave for the east the matter was turned over to Petrie, with the understanding that the airplane and the pilot employed to fly it must meet with the approval of the Richfield Oil Company. Objection was xmade to a certain pilot whom Campbell contemplated employing; whereupon the latter sought for another pilot and was introduced to Kenneth- W. Gale on or about August 17, 1929, at which time and after ascertaining his qualifications Campbell told Gale that he was to be employed to fly the airplane, and when Gale inquired about his pay Campbell told him that he, Gale, would have to look to the Richfield Oil Company for his pay. The matter of possible wages was discussed and Gale was informed that he must make his arrangements with the Richfield Oil Company as to the amount of wages to be paid. Gale thereupon left Campbell for the avowed purpose of speaking to Petrie about his compensation, and later returned to Campbell and