F. T. KENNEDY et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and W. A. SPENCE, Respondents

[Civ. No. 5442. First Appellate District, Division One. November 8, 1926.] F. T. KENNEDY et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and W. A. SPENCE, Respondents. HI Workmen’s Compensation Act—Injury While Laying Shingles —Measure of Compensation—Employer and Employee—-Independent Contractor.—In this proceeding in certiorari to review an award of the Industrial Accident Commission, the findings of fact and award determining that applicant, who was injured while employed by respondent general contractor to lay shingles for a specified sum per thousand shingles, etc., was an employee, was affirmed on the authority of Eillen v. Industrial Ace. Com., 199 Cal. 577 [250 Pac. 570], (1) Workmen’s Compensation Acts, C. J., p. 50, n. 63, p. 115, n. 37. PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award affirmed. The facts are stated in the opinion of the court. R. P. Wisecarver for Petitioners. Warren H. Pillsbury for Respondents. [MAJORITY — TYLER, P. J.] TYLER, P. J. Certiorari to annul an award of the Industrial Accident Commission in which compensation was awarded to one W. A. Spence on the theory that he was an employee of petitioner. It was and is contended that Spence was not an employee of Kennedy, but that he was operating as an independent contractor. Briefly stated, the facts are as follows: P. T. Kennedy is a general contractor who at times subcontracts various portions of his work. He had a contract to erect certain buildings at -the Boy Scout Camp in East Oakland. The work of shingling the buildings was let to one W. A. Spence, who agreed to do this work for $1.50 per thousand shingles laid and three and one-half -cents a foot for the hips and valleys. While employed at his work, Spence fell from the roof of one of the buildings, sustaining a fracture of the pelvis. Thereafter, on July 30, 1925, he filed his application for adjustment of claim with respondent Commission against Kennedy and his insurance carrier, Royal Indemnity Company. A hearing was held on August 12, 1925-, and on September 15th following the Commission made and filed its findings of fact and award wherein it was determined that the applicant was employed as a shingler by Kennedy and that the injury complained of arose out of the employment, and compensation was awarded at the rate of $20.83 a week, beginning June 23, 1925, and until the further order of the Commission. A petition for a rehearing was filed and denied and the present proceeding in review followed. No useful purpose would be subserved by an extended review or analysis of the facts. They are on all-fours with the case of Hillen v. Industrial Acc. Com., 199 Cal. 577 [250 Pac. 570], decided by our supreme court on November 3, 1926. On the authority of that case the award must be and it is hereby affirmed. Cashin, J., and Knight, J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on December 7, 1926.