New Amsterdam Casualty Co. v. Industrial Accident Commission

MARKS, J. D. B. Moore, an elderly gentleman of the age of about eighty-four years, suffered a fracture of his hip and was confined to a hospital in the city of Tulare for a considerable time. During the early part of his confinement there he was cared for by graduate and registered trained nurses. For the latter part of his stay he was attended by Miss Katherine Stacy, who was not a graduate and registered nurse, but came within the classification of practical nurse. It was not questioned that her long experience had qualified her to perform all of the duties of a graduate and registered nurse. "While at the hospital she performed these duties and received the compensation of a graduate and registered nurse.

On December 8, 1930, Mr. Moore was discharged from the hospital and returned to his home. He was not sick, but was totally disabled as a result of his injury and the [721]physical weaknesses of age so that he required the constant care of an attendant. He took Miss Stacy with him. She was on duty twenty hours a day, having four hours off. She lived, and took her meals at the Moore home and received about the same compensation as would have been paid to a graduate and registered nurse. During the four hours of each day when Miss Stacy was off duty, Mr.? Foss took care of Mr. Moore. Mr. Foss was not shown to have possessed any of the qualifications of even a practical nurse. His services were entirely satisfactory and it was not even suggested that he was not competent to perform all the functions of his employment and to attend to all the wants and needs of Mr. Moore. During his hours on duty he performed about the same services for Mr. Moore as did Miss Stacy during the twenty hours when she' was attending him.

On August 25, 1932, while performing the duties of her employment at the home of Mr. Moore, Miss Stacy fell and fractured the neck of her left femur. She was confined to a hospital for a number of weeks and was not able to work between the time of her injury and August 30, 1933. She applied for compensation and the Industrial Accident Commission awarded her $1242.85, total temporary disability from August 25, 1932, to August 15, 1933, and the further sum of $25 per week commencing August 16, 1933, to continue until the termination of her disability, or until further order of the commission. This proceeding is brought to review this award.

The petitioners urge three grounds for the annulment of the award. (1) Conceding that Mr. Moore and the insurance agents intended to cover Miss Stacy as an employee under the policy written by the New Amsterdam Casualty Company, and accepted and paid for by Mr. Moore, and that all of them believed she was so covered, such agents were not agents of the Casualty Company and therefore the New Amsterdam Casualty Company was not bound' or obligated beyond the terms of its express contract. (2) That Miss Stacy was an independent contractor and not an employee of Mr. Moore, and therefore was not covered by the terms of the policy. (3) That there is no evidence in the record showing that Miss Stacy was disabled.