Berkowitz v. Pelton

FRICKE, J., pro tem. These actions, tried together, were brought to recover damages for personal injuries suffered by plaintiffs as the result of the negligence of defendant Scarcliffe whose automobile, while he was performing services for appellant, collided with that in which the plaintiffs were riding.

Appellant’s principal point is that there is no evidence to support the conclusion that Scarcliffe was a servant of appellant and not an independent contractor.

Appellant has failed to print in its brief either by direct quotation or in substance sufficient portions of the evidence to present the question as to the nature and character of the employment. Respondent, however, has presented sufficient of the record to disclose among other facts that Scarcliffe some years previous had solicited “a job” from appellant and was told that he could have one. He bought a car and reported for work and was on call inside the studio gates during the hours and at the special place prescribed by appellant. During the entire time of his employment, a period of several years, the work he did was under the control of the transportation dispatcher employed by appellant. Whenever his services were required he was called. He was paid either at a stipulated sum per mile traveled or at a stipulated sum per hour, it being agreed that his compensation should be calculated according to whichever method of computation resulted in the larger sum. His orders were upon the same form used for all other drivers for the studio. On return from a trip he had to check in to the office of appellant. When not rendering service, he remained at a special place inside the studio walls, designated for drivers and automobiles. His employment was [82]not limited to local transportation but included trips to San Francisco and other places in the state and on such occasions appellant paid his hotel and garage expenses. The employment was not based upon any written contract but rested solely upon his applying for a job, being told to go to work and his continued employment thereafter. When the per diem of appellant’s employees was increased under the National Recovery Act code, Scarcliffe’s per diem was also increased. When he desired to be absent on a personal matter, such as going to a football game, he always first asked the transportation manager for his approval. On a few occasions when he had to substitute another driver of the car in place of himself, he secured the approval of a transportation dispatcher because “I could not put anybody on that car and have them in the studio working there”.