Hartford Accident & Indemnity Co. v. Industrial Accident Commission

CRAIG, J. —An award by respondent commission for injury sustained by an owner and operator of a truck and against certain contractors and their insurance carrier is presented for review by said carrier. It is undisputed that the employee received injury while hauling with his own conveyance material for highway construction at Mountain View, and that said injury caused his demise; that he and other truckmen had been employed elsewhere in hauling materials for road construction by a partnership known as Nollenberger and Knapp; that the latter were using their own trucks and those so employed in hauling cement, sand and rock, commonly termed “batching”, under an agreement with a general contracting firm known as Basich Brothers at the rate of $2'.25 per hour per truck; that upon removal to Mountain View the trucks were occupied in “batching” part of the time and when not so engaged were permitted to carry dirt for building “shoulders”, etc., on said highway. An award for dependents of said deceased was granted, based upon findings that decedent, while employed as a truck driver by defendant Basich Brothers, sustained injury1 arising out- of and occurring in the course of said employment, and that defendants Nollenberger arid Knapp were not the employers at the time of said injury. It is contended in this proceeding that Basich Brothers were not the employers at the time of the injury in question, that they did not have the power to hire or discharge truck owners and employees and that said decedent was at the time of injury an independent contractor. We think the objections resolve themselves into a test as to the sufficiency of the evidence upon which such findings and conclusions were founded.

[364]The witness Knapp, one of the general contractors, testified that the latter employed decedent and others to work with their own drivers in hauling “batches”; that they had agreed to furnish all necessary trucks and that if more were needed they were “to go out and hire them”; that Basich Brothers paid the hired truckmen in this work, but that amounts so paid were taken out of the firm account of Nollenberger and Knapp; that he supervised all trucks while “batching”; that at the Mountain View job “if they weren’t busy and I knew Basich wanted extra trucks he would tell me . . . and they would go to work for him if they wanted to”; that Underwood, the decedent, hauled dirt for $2.25 an hour, which was paid directly to drivers as their compensation; that Nollenberger and Knapp had no contract to haul dirt and gave no instructions at such times. The witness occasionally kept the time of men and turned it in “just for accommodation”, but did not consider them his men — they were not on his pay-roll and his firm received nothing for their work when not hauling cement, sand and rock. He swore positively: “I was to receive $2.25 for my trucks; if they needed any extra trucks to haul dirt . . . ”; hired truckmen “had the same privilege. If they were not busy then if Basich needed trucks they could go to work for him.” He told them, “I knew Basich needed extra trucks on the dirt hauling” and “explained explicitly to Mr. Underwood that if he hauled dirt he hauled for Basich . . . and told them thejr were working for Basich when they worked on the dirt. Basich set the price. In fact, their superintendent came to me one day and said that ‘he could only pay $2.00 an hour for that work’ . . . and he went to Underwood and said they could only pay $2.00 an hour and asked him if he wanted to stay on, and he [Underwood] said ‘what are you doing?’ and I said, ‘I am pulling my trucks off’, and he said ‘I will do the same thing, then’, and finally they agreed to pay $2.25.” The job superintendent of Basich Brothers testified that he hired these men for hauling dirt; their manager stated under oath that he agreed with that testimony. Said superintendent was in charge of the dirt hauling, and “Basich Brothers told them where to dump dirt . . . whete to get dirt . . . when to stop work . . . when to quit work ... He could have fired them any time . . . they paid all these truck