Employers' Liability Assurance Corp. v. Industrial Accident Commission

[616]

RICHARDS, J.,

pro tem.—This proceeding was instituted hy the petitioners herein to review an award of the Industrial Accident Commission granting compensation to W. L. Williams, one of the respondents herein. There is no dispute as to the facts upon which this proceeding is predicated. W. L. Williams was a partner in the firm of Green & Williams, copartners, engaged in the rock-crushing business and employing several men. Th'e duties of Williams as a member of said firm were those of working with the men in the gravel-pit, while the duties of Green, the other member of the copartnership, were those of attending to the selling and collecting business of the firm. Each was an equal partner, neither receiving wages, but deriving his benefits from the association solely out of the profits of the business. The petitioner herein was the insurance carrier of the firm under the terms of a policy issued by it, which policy, as to most of its provisions, was in the usual printed form, apparently intended for general use throughout the United States where workmen’s compensation laws existed, with addenda attached thereto referring particularly to the provisions of the California law upon the subject. In this policy of insurance there was inserted the following clause:

“Payroll for Comp, to include drivers and drivers’ helpers, also chauffeurs and chauffeurs’ helpers.

“Including William L. Williams at an amount not exceeding $1,666 per annum; All others excluded.” .

W. L. Williams was injured while at work in the gravel-pit during the life of this policy and made application to the Industrial Accident Commission for an award, naming the firm of which he was a member and its insurance carrier as the respondents in said application. An answer was filed by the said respondents, denying the jurisdiction of the commission over said proceeding, and also denying that the applicant was in the employ of said firm, and alleging that upon the date of his injury the said applicant was not earning more than the minimum amount upon which compensation is based under the Workmen’s Compensation Act. Upon the hearing before the commission it made an award to the applicant of $20.83 a week for 240 weeks, and $12.82 a week for the remainder of his life, together with the sum of $708.22 accrued from the date of his injury to the date of said award. The award states “that the foregoing weekly