Hillen v. Industrial Accident Commission

WASTE, C. J.

The petitioners sought and obtained a writ of

certiorari

to review a decision of the Industrial Accident

[579]

Commission awarding Frank M. Downing compensation for injuries received while shingling a building, the sole question presented being whether or not Downing was an independent contractor or an employee of the petitioner Hillen. It was stipulated before the Commission that if Downing was in fact an employee of Hillen, the injury he received arose out of and in the course of his employment.

The facts are without conflict. Hillen was engaged in the business of building and selling homes in the city of Oakland. Downing was a shingler by trade. Some time before the accident in question he called on E. W. Urch, Hillen’s superintendent, and, referring to the particular job, asked “if the shingling was let.” It being customary in the building business to have shingling done “at so much per thousand,” he left with Urch a card on which was written Ms name and telephone number and a notation which read “$1.25 - thousand, 3 cts. for ridges,” that being the price for which he was willing to lay the shingles. When the house was ready for shingling the superintendent sent for Downing and put him to work. After the first negotiations, which were as above related, Downing worked on a number of houses, he apparently being the only one doing any shingling for Hillen during that period. The arrangement under which he worked was, as testified to by Superintendent Urch, “a mutual understanding when he would come on the job it would be $1.25 a thousand, and there was nothing further said about the agreement to shingle, and when each job was done the bill would be made per thousand, and I would O. K. it, send it to the office and it would be paid. ’ ’ On the first jobs the superintendent watched Downing very closely until satisfied that he was a competent shingler. As Downing proved to be a careful workman only occasional directions were given to him at that or any subsequent time, but the shingling was always under the watchful supervision of Hillen’s superintendent or foreman. Hillen furnished the shingles, nails and other materials required for shingling the houses, and all necessary ladders and other appliances for the work. His superintendent, or the foreman on the job, estimated and ordered the number of shingles required, and Downing put them on. Downing used his own shingler’s hatchet, “snips” for cutting valley tin, and shingler’s apron. For the purpose of