Globe Indemnity Co. v. Industrial Accident Commission

THE COURT.

Certionrari to review and annul an award of the Industrial Accident Commission.

The application was made by Jack Clemmer, a twelve year old newsboy, against Fred Johansen, Independent Publishing Company, publisher of the “San Rafael Independent,” and the Tribune Publishing Company, the publisher of the “Oakland Tribune. The boy was injured by falling from his bicycle while within the precincts of the railroad station "at San Rafael when he was about to procure his bundle of newspapers for distribution. Hearings were had and the Commission found that Jack, at the time of the accident which caused the injury, was in the employ of the Tribune Publishing Company and that the injury arose out of and occurred in the course of that employment; that though he was at the same time employed by the “San Rafael Independent” he was not acting in the course of that employment, but was engaged in a material detour therefrom at the time the injuries were sustained. As to that employer the application was therefore dismissed.

The Tribune Publishing Company and its insurance carrier, Globe Indemnity Company, after proceedings duly" had, petitioned this court for a writ of review and to annul the award consequently ordered on the findings of the Commission on the grounds (1) that the evidence does not sustain the finding that Jack Clemmer was an employee of the petitioner, the Tribune Publishing Company, hut in fact was an employee of Fred Johansen, who was an independent contractor; and (2) that if this court should be of a different opinion nevertheless the injury did not occur in the course of the employment. Under the second ground the “going and coming” rule is invoked. The findings as .to the “San Rafael Independent” are not seriously questioned by the petitioners.

Fred Johansen, also a minor at that time of about fifteen years, with the assistance of his mother, carried on an agency to distribute the “Oakland Tribune” to subscribers in San Rafael. The record shows without dispute that he paid to the Tribune Publishing Company $1.50 per hundred

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for the newspapers and collected eighty-five cents per month from each subscriber, which he retained and for which he receipted on printed forms furnished by the Tribune Publishing Company. He was also paid $3 a month additional, which was intended to compensate him for the extra expense of distribution because of the large and scattered territory. He was furnished a list of the subscribers by the company which was, of course, changed as new subscribers were added or old subscriptions were canceled. Notification of such changes was sent by the company. Complaints of poor service received by the company were also forwarded by it to Fred. A representative of the Tribune Publishing Company occasionally called to see if everything was all right, if more receipt forms were required, etc., but who gave no instructions on such visits. It is conceded that at no time did the Publishing Company instruct Fred as to the means he should use in distributing the papers, the route that should be taken, or whom, if anyone, he should employ to assist him. The Publishing Company knew that Fred was employing assistance in his work and made no objection thereto. His only instructions were that deliveries of papers should be made as early as practicable after their arrival at the San Rafael railroad station. A “Bond and Guaranty” was signed by Fred’s father to guarantee to the Tribune Publishing Company payment of its bills rendered to Fred. The guaranty also provided that the company required thirty days’ notice of any termination of the agreement by Fred, but reserved the right and privilege “to change agents at any time without question.” It was testified by a representative of the Tribune Publishing Company that the oral agreement with Fred was that he would be discharged only if his services were deemed unsatisfactory.