California Employment Stabilization Commission v. Gusmeroli

ADAMS, P. J. This case is similar to California Employment Stabilization Commission v. Wirta, this day decided {post, p. 739), and it is conceded by appellant that it “presents a question of law virtually identical” with that presented therein. The action was instituted under the provisions of sections 37, 38 and 44 of the California Unemployment Insurance Act [Stats. 1935, p. 1226, as amended; 3 Deering’s Gen. Laws, Act 8780d] for the collection of contributions for the period beginning April 1,1937, and ending March 31, 1939. The trial court found that during the period alleged Gusmeroli entered into contracts with certain persons as independent contractors for the manufacture of redwood products; that he was not an employer and that he did not make payments of wages with respect to employments subject to the Unemployment Insurance Act; that whatever moneys he paid as set forth in the complaint were paid by him to various persons who performed independent contracts and were independent contractors and were not his employees. Judgment was rendered for defendant and after denial of a motion for new trial this appeal was taken.

The evidence shows that Gusmeroli, who was in the business of selling redwood split products and maintained a yard at Redway, Humboldt County, owned some 320 acres of redwood timber. It was his custom to give to men known as “tie-makers” what is referred to as a “lay-out” consisting of a strip of timber containing from, 15 to 30 trees. These trees the tie-makers felled and made therefrom posts, ties, shakes, etc., which, if up to standard, were thereafter bought by Gusmeroli. The lay-outs would sometimes be assigned to one man and sometimes to two men. The only requirement of a man operating a lay-out was that the products he made must be up to the standards set in the split products industry or Gusmeroli would not buy them. No instructions were ever given by respondent as to how the standing timber should be felled. No tie-maker was required to work any specified time. He furnished his own tools and his transportation from his place of residence to the place where his work was done. He might take someone else to work with him [737]without consulting Gusmeroli and in such event Gusmeroli paid only the man to whom the original lay-out was assigned. Respondent checked the number of the products only when the tie-makers needed money or requested him to come into the woods. Without any directions from respondent the tie-makers manufactured from each tree the split products for which they deemed the tree most advantageous. Gusmeroli did not furnish board to any of the tie-makers nor was board given to them as a part of their compensation. He never paid any weekly wages or stipulated wages of any sort. The men worked as and when they pleased and if the holder of a lay-out became intoxicated for a period of time, which Gusmeroli said was not an uncommon occurrence, he could return and conclude working on his lay-out whenever he saw fit. Some men worked from daylight to dark, others worked only a few hours a day, and under their contract with Gusmeroli they were not required to work any specified time. One of the tie-makers who worked during the period involved in this litigation was a carpenter who worked on his lay-out part of the time and the rest of the time did carpentering work for others than Gusmeroli. Some of the tie-makers drew money every day, some every six months and some every one or two months. Respondent retained the right to cull the products and if they did not come up to the particular standard of the particular type of split product he could refuse to buy them. None of the men was ever paid any weekly wage or stipulated wage of any sort and no payment was made to anyone on the basis of time involved. No man was ever removed from the lay-out by respondent and respondent reserved no right to remove men from their lay-outs because they worked only a limited number of hours a day. The tie-makers furnished all of their own tools which consisted of drag saws, costing around $175, crosscut saws, costing from $25 to $30, and also .wedges, hammers, axes and all other tools necessary for the manufacture of split products. Also they furnished their own gasoline to operate the drag saws, and respondent never furnished any gasoline or any tools. Regardless of the time it took a man to make a product the price he received therefrom was the same. Respondent kept no foreman or timekeeper in the woods and did not act in either capacity himself. No man was told how to perform his work and no criticism was ever made of the way his work was done. No man was permitted to go on the lay-out as