National Automobile Insurance v. Industrial Accident Commission

SHENK, J. This is a proceeding to review an award of the Industrial Accident Commission.

George Ivy met his death while employed to drive an oil truck and trailer which was sublet by Miller Oil Products to Pathfinder Petroleum Company. Ivy’s widow and minor son applied for death benefits against both concerns. The commission found that both were employers, that both were subject to the Workmen’s Compensation Act, and that they were jointly liable. An appropriate award was made in favor of the surviving dependents against Miller Oil Products as general employer, and Pathfinder Petroleum Company .as special employer. The insurance carriers were held jointly liable for payment of the award and the employers were dismissed. National Automobile Insurance Company, carrier for Miller Oil Products, seeks to annul the order affecting its liability.

It is conceded that Ivy met his death in the course of his employment and from causes arising out of the employment; that his widow and minor son are entitled to any benefits awarded; and that Pathfinder Petroleum Company was an employer, The sole question presented is the sufficiency of the evidence to justify the finding and conclusion of the commission that Miller Oil Products was the general employer. If such evidence is in the record the conclusion that the petitioner is liable may not be disturbed. (Sec. 67(c), Workmen’s Compensation Act; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 704 [151 P. 398]; F. W. Woolworth Co. v. Industrial Acc. Com., 17 Cal.2d 634 [111 P.2d 313].)

The record shows the following: Miller Oil Products is a co-partnership, consisting of two Miller brothers, engaged in [217]the business of distributing oil products. It operates from Whittier, California. It owned some and leased other oil trucks which it used in its own business and also leased to others. Pathfinder Petroleum Company conducted an oil refinery in Los Angeles. It owned no trucks or other distributing system. On March 15, 1942, it entered into a written agreement with Miller Oil Products to lease from the latter certain oil trucks at stated rates per mile. Section 4 of the lease agreement provided: “Lessee during the time Lessee shall use the leased equipment pursuant to the terms of this lease, shall have the sole and exclusive control and use of the said leased equipment to the same effect as if Lessee were the owner thereof. Lessee shall employ and pay the wages of the drivers of the said equipment. Lessee agrees to employ and to permit said equipment to be operated only by competent and careful drivers duly licensed as required by law, and that Lessee shall in connection with such employment of such drivers carry all necessary and required workmen’s compensation insurance or. other insurance and shall comply with all laws, rules and regulations relating to the employment of truck drivers.” The lease was in effect on the dates hereinafter mentioned.