Freiden v. Industrial Accident Commission

WASTE, J.

On November 12, 1921, Caldwell, one of the respondents herein, and the applicant before the Industrial Accident Commission, was engaged with two other

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men in unloading automobiles from a box-car in the city of San Diego. The automobiles were consigned to J. W. "Freiden, the defendant before the commission and one of the petitioners here, who was in the business of selling automobiles in said city. While unloading the car Caldwell suffered an injury, and it was to recover compensation for the period of his disability that the proceedings were inaugurated before the Industrial Accident Commission. At such hearing an award was made in his favor, which is the subject of the review here. The sole question presented is whether or not Caldwell was an employee of J. W. Freiden at the time of the injury.

It appears from the record that Howard Harper, a longshoreman, had for a period of approximately ten years previous to the date of the injury been engaged during the greater part of his time in unloading automobiles from cars for various dealers in San Diego. It was his custom to ascertain when shipments were due and had arrived, whereupon he would notify the dealers, and they would let him know when to start in to unload them. He looked after that work alone, hiring such assistants as he required. He collected the pay from the dealers at the rate of $1.50 for each machine unloaded and divided the money with his assistants. In unloading the machines from the ears Harper and his fellow-workers used three chain falls, made fast to the roof of the car. By this means and with chain slings the automobiles were lifted out on to the unloading platform. The appliances used were furnished by Harper, they having been found by him on the railroad property and being used by him. While one of the automobiles was being “slung up to the rafters of the car with the chain fall” the supports under it were taken out. “The chain carried away” and the automobile toppled over and fell on Caldwell, inflicting the injuries for which he seeks compensation. From these facts the Industrial Accident Commission found that Caldwell was injured while employed as a laborer by J. W. Freiden, the petitioner here. We are unable to agree with this conclusion.

While the testimony as to the nature of the alleged employment of Harper and the others by Freiden relates more to the general custom followed in such matters than to the