Guth v. Industrial Accident Commission

THE COURT. Petitioner seeks to annul an order of respondent commission denying death benefits to her and her minor child.

For a number of years George L. Guth, husband of petitioner, was in the employ of respondent Rubber Company at Sacramento. Twenty-three years prior to his death, and continuing thereafter, he was a stockroom and order clerk. During this time, and in this capacity, he was admittedly an employee of the company. In addition to this relationship with the company, there grew up another which came into existence about eight years after the first. There is evidence in the record which would justify the commission in basing their order upon the following facts which describe the second relationship mentioned. During the first eight years all deliveries of the company were made by common carrier, independent parcel delivery service, and independent drayage firms. In 1924, the deceased approached Mr. Smith, manager of the company at Sacramento, suggesting that as he needed additional income to support his family and educate his children, he would like to buy a truck, and in his off-hours make some of the deliveries then being made by the independent firms above referred to, upon the same basis that they were making these deliveries. Smith agreed to this, and in order to help him get started, personally guaranteed the payments on the first truck the deceased bought.

From 1924 onward the deceased owned and maintained one or more trucks. With them he made deliveries of the company’s merchandise to customers and retail agents in and about the vicinity of Sacramento, in his off-hours; before work in the morning, at noon, at night, on Sundays and on holidays. Sometimes he drove these trucks; at other times his wife or his wife and his son made the deliveries. He carried and paid for his own insurance, though, as is customary where a contract delivery service makes deliveries for a company, [764]the Tire Company was named as an additional assured. He had his own licenses from the Motor Vehicle Department and his own license and radial carrier’s permit from the Railroad Commission. He paid his own license fees and his own taxes. He furnished the detailed statements to the Railroad Commission required of all licensed radial carriers. He was free to haul for anyone else he saw fit, and could have had someone else drive his trucks in hauling for the Tire Company or anyone else; in fact, the record shows his wife frequently did drive the trucks without him in making deliveries. He was not required under the contract thus to render any personal service, but could have anyone he saw fit drive the trucks. He was not restricted to delivering only for the Goodyear Company; he was free to deliver, and have his trucks, with someone else driving, deliver for whomever he saw fit.