Brietigam v. Industrial Accident Commission

Petitioners Brietigam and their insuranee carrier, Pacific Employers Insurance Company, seek the annulment of an award of the Industrial Accident Commission in favor of respondent Alfred Robbins. No question is raised concerning Robbins ’ right to compensation, the only point in dispute being the identity of the persons liable therefor. The award was based on the finding that petitioners Brietigam were the sole employers of Robbins at the time of his injury. Petitioners contend that the evidence fails to support the existence of such employer-employee relationship, and that in so resolving the employment issue, respondent commission acted in excess of its jurisdiction. (Lab. Code, § 5952.) But the record does not sustain their position.

In June, 1948, petitioners Brietigam, doing business as the Lemoore Grain and Feed Company, contracted to purchase a quantity of barley from the B. V. Farming Company of Bakersfield at “3.12% f.o.b. in pile Buena Vista or at 3.15 per cwt. f.o.b. cars Buena Vista.” The barley was part of a grain crop grown by the F. & H. Farming Company, consisting of Francis Houchin and a Mr. Freeborn, on farm land at Buena Vista leased by the B. V. Farming Company, which company was owned by C. E. Houchin, an uncle of Francis Houchin. The latter was in charge at the field where the crop was grown, and he had his own crew to harvest the grain. Both farming companies, by reason of contractual arrangements covering the raising and handling of the grain crop, had an interest in the barley purchased by petitioners Brietigam. The B. V. Farming Company owned a grain-storage warehouse, which was in charge of its employee Buford L. Fox.

The grain was harvested and deposited at a spot known as the Levee Spur, situated on the Buena Vista farm land itself. Initially the grain was there loaded on freight cars for rail shipment, with the loading being done by five truckers hired by Francis Houchin at the rate of $1.00 per ton. Later, in July, 1948, a railroad embargo prevented further shipment as originally contemplated, and other arrangements for handling the barley purchase had to be made between the parties. C. E. Houchin telephoned petitioner H. S. Brietigam and insisted

The actual deal with the truckers in regard to the grain loading for delivery to the warehouse was made by Francis Houchin according to the price agreement reached between Brietigam and Fox for that work. Francis Houchin continued to direeTthe loading operations at the farm, and Fox directed the unloading operations at the warehouse. From the truckers’ testimony, it appears that there was a variety of opinion among them as to the employment arrangements: some thought they were working for Francis Houchin since he “bossed” the loading, while others thought they were working for Brietigam in line with their understanding that the price rate for the hauling represented what he was willing to pay therefor. To cover the first few days’ hauling expense under the $1.60 per ton rate, Brietigam (Lemoore Grain and Feed Company) sent a “lump-sum check” to the B. V. Farming Company, but this procedure did not meet with the latter company’s approval as indicated by the bookkeeper’s letter to the Lemoore Grain and Feed Company under date of July 21, 1948. As here pertinent, the letter read: “We requested that you forward your checks made payable to each trucker for the amount due him, and as a matter of assistance to you we would see that the checks were delivered to them. We now have a check from you in the amount of $706.36 which covers the amount due the truckers for July 15, 16 & 17. This check was made out to B.

Following delivery to the warehouse, negotiable warehouse receipts were issued showing the number of sacks of barley “received on storage from B. V. Farming Company for aecount of Lemoore Grain & Feed Company.” With respect to “taking delivery of the grain,” Brietigam testified: “It’s not my property until its aboard the truck, and if it calls for f.o.b. pile, I take delivery at the pile. It becomes my property when I take it out of the pile.” (Italics added.) In further explanation, he added: “I meant that when we buy it f.oib. at the pile, it doesn’t become our property until we take delivery out of the pile. . . . Once it’s removed from the pile it’s our property.” (Italics added.)

The decisive question in the ease is the relationship between petitioners and the truckers. If the truckers were employees of petitioners Brietigam, then Bobbins, the injured “swamper,” who was hired by the truckers for the loading work, was also an employee of petitioners Brietigam. (S. A. Gerrard Co. v. Industrial Acc. Com., 17 Cal.2d 411 , 413-414 [ 110 P.2d 377 ]; also Keeling v. Industrial Acc. Com., 16 Cal.App.2d 733 , 735 [ 61 P.2d 373 ].) However, if the truckers were independent contractors, then Bobbins, as their employee, would have no rights against petitioners. (State Compensation Insurance Fund v. Industrial Acc. Com., 46 Cal.App.2d 526 , 529 [ 116 P.2d 173 ].) Likewise the “essential employer-employee relationship” would be lacking if, as argued by petitioners, Bobbins was hired by the truckers, who were in turn employees of either of the Houchins or of both, to the exclusion of any employment status with petitioners. While there is some evidence tending to indicate each of the suggested employment relationships, there appears to be ample evidence which supports the finding of respondent commission

From the record it may reasonably be inferred that the hauling arrangement made with the truckers following the railroad embargo contemplated an entirely new contract of employment pursuant to petitioners Brietigam carrying through their storage arrangement with C. E. Houchin, rather than simply, as petitioners maintain, a continuation of the former agreement with a mere change in the destination of the barley and an appropriate modification of the tonnage rate for hauling. As heretofore stated, there were two alternate methods of delivery provided in the original contract of purchase of the barley: (1) the seller would deliver it f.o.b. the railroad cars for $3.15 per hundred weight or (2) the buyer could pick it up out of the pile at the railside for the lesser sum of $3.12% per hundredweight, and the hauling cost from there presumably would be the buyer’s obligation. So it would seem that when petitioners Brietigam were paying the stipulated higher price under the first arrangement, title to the grain would not pass until it was placed in the cars and the truckers in hauling to the designated place of delivery were working for the seller; but when petitioners changed to the second arrangement at the lower price with delivery at the roadside pile, the trucking thereafter became petitioners’ responsibility, with the Houchins acting 'as their agents and lending what assistance they could as a matter of gratuitous cooperation. While petitioners cite the form of the warehouse receipts — “Received in storage from B. Y. Farming Company for account of Lemoore Grain and Feed Company” — as indicating that title to the grain did not pass until it was warehoused, yet certain testimony of H. S. Brietigam, one of the petitioners, clearly indicated that title to the grain passed to petitioners when they took it “out of the pile.” In line with such testimony, the form of the warehouse receipts might be regarded as no more than a means of identifying the source of a particular lot of grain rather than a mark of title transfer.

Since the conflicting evidence was clearly susceptible of opposing inferences, and the inference drawn by respondent commission on the employment issue was amply supported, the commission’s finding will not be disturbed.

The award is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Sehauer, J., concurred.