Case Summary: Lambert Skillman v. Industrial Accident Commission; Martin A. Neilson

Court of Appeal of California, First District, Division Two — April 28, 1933. Docket No. 8866. Opinion by Nourse, P.J. Counsel: Tompkins for Petitioner; A.I. Townsend for Respondents.

Factual and Procedural Background

Petitioner Lambert Skillman sought annulment by writ of certiorari of an award by the Industrial Accident Commission granting compensation to Martin A. Neilson. Neilson was employed by petitioner to wreck a wooden shed when he was injured. Petitioner's primary business was constructing water-tanks; in the course of that business he frequently wrecked and removed old water-tanks and other buildings. Petitioner testified that tank-construction work was slack at the time and that the shed was being wrecked for the purpose of selling some of the lumber. The Commission found that the work was "in the course of the trade, business, profession or occupation of his employer" within the terms of section 8a of the Workmen's Compensation Act. The sole procedural posture before the court was a certiorari proceeding seeking annulment of the Commission's award. The Court of Appeal affirmed the award.

Legal Issues Presented

Whether the Commission's finding that Neilson's work in wrecking the shed was "in the course of the trade, business, profession or occupation of his employer" (within section 8a of the Workmen's Compensation Act) is supported by the evidence.
Whether Neilson was "excluded" from coverage under section 8a (a mixed question of law and fact), given that it was conceded he was not an independent contractor.

Arguments of the Parties

Petitioner's Arguments

Petitioner testified that his business did not include wrecking buildings other than water-tanks and that the shed was being wrecked only because tank work was slack and the lumber was to be sold.
Implicitly, petitioner asserted that Neilson was not engaged in the employer's trade or occupation and therefore was excluded under section 8a.

Respondents' Arguments

Respondents pointed out that petitioner's testimony was equivocal and unconvincing.
They argued the Commission was not required to accept petitioner's testimony over the statutory presumption of employment, and that the evidence supported the Commission's finding that the work was within the employer's business.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hillen v. Industrial Acc. Com., 199 Cal. 577 [250 P. 570]	Supports the statutory presumption that "Any person rendering service for another... is presumed to be an employee" (sec. 8b), placing the burden on the party challenging coverage to show independent-contractor status or exclusion.	The court invoked the presumption and held that petitioner bore the burden to prove exclusion; petitioner conceded he was not an independent contractor, so the burden focused on exclusion under sec. 8a.
Pacific Gas Elec. Co. v. Industrial Acc. Com., 180 Cal. 497, 499 [181 P. 788]	States that whether a person is "excluded" under section 8a is a mixed question of law and fact to be proved like any other question.	The court treated exclusion as a mixed question of law and fact and considered the evidence accordingly, requiring petitioner to prove exclusion by the record.
Murray v. Industrial Acc. Com., 216 Cal. 340 [14 P.2d 301]	Also cited for the proposition that exclusion under section 8a is a mixed question of law and fact requiring proof.	The court relied on the same principle to evaluate whether petitioner proved exclusion; it considered the testimony and surrounding inferences under that standard.
Eastman Co. v. Industrial Acc. Com., 186 Cal. 587, 598 [200 P. 17]	States the standard of review: the court may set aside the Commission's finding only where there is such an entire absence of evidence in the record as to render the finding unreasonable or in excess of the Commission's powers.	The court applied this standard and concluded that, given the presumption of employment and permissible inferences from the record, there was not an entire absence of evidence; therefore the finding was not subject to annulment.

Court's Reasoning and Analysis

The court began from the statutory presumption in section 8b that a person rendering service for another is presumed to be an employee, which places on petitioner the burden to show that Neilson was either an independent contractor or otherwise excluded under section 8a. Petitioner conceded he was not an independent contractor, leaving exclusion under section 8a as the contested issue. The court treated exclusion as a mixed question of law and fact to be proved like any other question, citing Pacific Gas Elec. Co. and Murray. Petitioner relied on his direct testimony that he did not engage in wrecking buildings other than water-tanks; respondents countered that his testimony was equivocal and not necessarily sufficient to overcome the statutory presumption. Under the appellate standard from Eastman Co., the court may set aside the Commission's factual finding only when there is an entire absence of evidence supporting it. Considering the presumption of employment, the equivocal nature of petitioner's testimony, and permissible inferences from the record, the court concluded petitioner had not sustained his burden of proof and that the Commission's finding was not unreasonable.

Holding and Implications

Award affirmed.

Implications: The direct effect is that the Industrial Accident Commission's award of compensation to Martin A. Neilson remains in force. The court applied the statutory presumption of employment, treated exclusion under section 8a as a mixed question of law and fact, and declined to annul the award because the record contained evidence and permissible inferences supporting the Commission's finding. The opinion does not announce or discuss any broader new legal principle beyond applying established standards and precedents.

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LAMBERT SKILLMAN, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA and MARTIN A. NEILSON, Respondents.

NOURSE, P.J.

Petitioner seeks an annulment of the award for compensation in favor of Martin Neilson, who was employed by petitioner in the wrecking of a wooden shed. Petitioner's main occupation was that of constructing water-tanks and in the course of this occupation he frequently wrecked and removed old water-tanks and other buildings. The petitioner testified that at the time of the injury the work of constructing water-tanks was slack and that he was having the old shed wrecked for the purpose of selling some of the lumber. The Commission found that this work was "in the course of the trade, business, profession or occupation of his employer" within the terms of section 8a of the Workmen's Compensation Act. (Stats. 1917, p. 835.)

[1] The single question presented in this proceeding is whether this finding is supported by the evidence. "Any person rendering service for another, other than as an independent contractor, or as expressly excluded herein, is presumed to be an employee within the meaning of this act." (Sec. 8b.) Hence the burden of proof is cast upon the petitioner to show that Neilson was either an independent contractor or was expressly excluded under the terms of the act. ( Hillen v. Industrial Acc. Com., 199 Cal. 577 [ 250 P. 570].) It is conceded that he was not an independent contractor. [2] Whether he was "excluded" (i.e., under sec. 8a) is a mixed question of law and fact to be proved like any other question. ( Pacific Gas Elec. Co. v. Industrial Acc. Com., 180 Cal. 497, 499 [ 181 P. 788]; Murray v. Industrial Acc. Com., 216 Cal. 340 [ 14 P.2d 301].)

[3] In support of his contention that he was not engaged in the business of wrecking buildings other than water-tanks, the petitioner points to his direct testimony to that effect. On the other hand, the respondents point out that his testimony throughout was equivocal and unconvincing and it is argued that the Commission was not bound to accept petitioner's testimony as overcoming the presumption of employment found in the act. It is only where there is such an entire absence of evidence in the record as to render the finding unreasonable, or in excess of the powers of the Commission, that the court may set aside the finding. ( Eastman Co. v. Industrial Acc. Com., 186 Cal. 587, 598 [ 200 P. 17].) In view of the presumption of employment and the inferences which might be drawn from all the evidence we cannot say that petitioner sustained the burden of proof or that the finding is unreasonable.

The award is affirmed.

Sturtevant, J., and Spence, J., concurred.

SKILLMAN v. INDUSTRIAL ACC. COM