mination, so far as it affects employees by themselves considered, cannot be decisive; for it is the well-settled rule of this court that it only hears objections to the constitutionality of laws from those who are themselves affected by its alleged unconstitutionality in the feature complained of. Southern Railway v. King, 217 U. S. 524, 534 [30 Sup. Ct. 594, 54 L. Ed. 868]; Engel v. O'Malley, 219 U. S. 128, 135 [31 Sup. Ct. 190, 55 L. Ed. 128]; Standard Stock Food Co. v. Wright ,225 U. S. 540, 550 [32 Sup. Ct. 784, 56 L. Ed. 1197]; Yazoo & Mississippi Valley R. R. v. Jackson Vinegar Co., 226 U. S. 217, 219 [33 Sup. Ct. 40, 57 L. Ed. 193]; Rosental v. New York, 226 U. S. 260, 271 [33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71]; Darnell v. Indiana, 226 U. S. 390, 398 [33 Sup. Ct. 120, 57 L. Ed. 2671; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544 [34 Sup. Ct. 359, 58 L. Ed. 713]; Missouri, Kansas & Texas Ry. v. Cade, 233 U. S. 642, 648 [34 Sup. Ct. 678, 58 L. Ed. 1135]."

This reasoning is decisive of the present case. If section 75a contains -we do not say it does-an unwarranted discrimination against nonresidents, the only persons entitled to attack the law on this ground are members of the class thus excluded from the benefits of the legislation. -No constitutional right of the employer is invaded by the action of the Legislature in subjecting him to a less extensive liability than might have been imposed. Not being required to pass upon the constitutional question sought to be raised, we would not be justified in entering into a discussion of its merits.

Each of the awards is affirmed.

We concur: Angelotti, C. J.; Richards, Judge pro tem; Wilbur, J.; Melvin, J.; Victor E. Shaw, Judge pro tem.

On Petition for Rehearing.

PER CURIAM. [2] On petition for rehearing, the petitioners contend that the award should be annulled because, as is claimed, the facts were such as to bring each of the proceedings within the exclusive admiralty jurisdiction of the federal courts. No such point was suggested in the argument on which the petitioners submitted the cases for decision. It is the settled rule of this court that points made for the first time on petition for rehearing will not be considered.

On the questions actually argued, we are satisfied with the conclusions declared in the opinion filed. The petition for rehearing is denied.

SUPREME COURT OF CALIFORNIA.

EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND,

V.

INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA et al

ETNA LIFE INS. CO.

ย. SAME:

OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED,

ข.

SAME. (L. A. 5732, 5739, 5740.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -BURDEN-POLICY OF LAW.

It is the policy of the law to place the burden arising from personal injuries upon the business or industry in which an injured employee is engaged, by placing the responsibility for indemnity upon the employer. (For other cases, see Master and Servant, Dec. Dig. § 346.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -STATUTES CONSTRUCTION "EMPLOYER" — "“EMPLOYEE."

In defining the terms "employer" and "employee" in any statute passed in pursuance of Const. art. 20, § 21, authorizing the Workmen's Compensation Law, no definition therein contained can enlarge the scope of the constitutional authority.

(For other cases, see Master and Servant, Dec. Dig. § 347.) (For other definitions, see Words and Phrases, First and Second Series, Employee; Employer.)

3. MASTER AND

SERVANT—WORKMEN'S COMPENSATION

-RELATION OF PARTIES.

In determining whether or not the relationship of employer and employee existed under the Workmen's Compensation Law, the general law as well as the terms of the statute itself must be considered.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

"EMPLOYER"

"EM

4. MASTER AND SERVANT-WORKMEN'S COMPENSATION -PERSONS WITHIN STATUTE PLOYEE."

The definitions of "employer" and "employee," in Workmen's Compensation Law, §§ 13, 14, are broad enough to include both the general and special employer.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

* Decision rendered, Dec. 24, 1918. Rehearing denied Jan. 23, 1919. 177 Pac. Rep. 273.

5. MASTER AND SERVANT-WORKMEN'S COMPENSATION --JOINT EMPLOYERS.

Where a partnership furnished men and a foreman to a cement company, who were to be paid by the partnership with funds furnished by the cement company, the partnership retaining the power to hire and discharge, the men were under the joint control of the partnership and the company, who were jointly associated in carrying out the work. (For other cases, see Master and Servant, Dec. Dig. § 361.)

7. MASTER AND SERVANT-WORKMEN'S COMPENSATION -ACCIDENT ARISING OUT OF EMPLOYMENT-EVIDENCE. Under the express provisions of Workmen's Compensation Law, § 77a, as amended by St. 1915, p. 1102, § 28, the hearsay declarations of decedent are admissible to find that his death arose out of the employment, within the Act.

(For other cases, see Master and Servant, Dec. Dig. § 404.)

In Bank.

Proceedings under the Workmen's Compensation Law by Ellen R. Coulter, claimant, to recover for the death of J. A. Coulter, employee, opposed by the Employers' Liability Assurance Corporation, Limited, of London, England, the Ætna Life Insurance Company, a corporation, and the Ocean Accident & Guarantee Corporation, Limited. An award was made in claimant's favor by the Industrial Accident Commission, and the insurance carriers petition separately for writs of review. Award against Etna Life Insurance Company and the Employers'Liability Assurance Corporation, Limited, of London, England, affirmed, and award against the Ocean Accident & Guarantee Corporation, Limited, annulled.

Willis I. Morrison and C. La. V. Larzelere both of Los Angeles, for petitioner Ocean Accident & Guarantee Corporation, Limited.

Haas & Dunnigan, of Los Angeles, for peitioner Employers' Liability Assur. Corporation, Limited, of London, England.

Henshaw, Black & Goldberg, of San Francisco, for petitioner Ætna Life Ins. Co.

Christopher M. Bradley, of San Francisco, for respondents.

WILBUR, J. These proceedings were instituted by the petitioners to review an award against them by the Industrial Accident Commission in favor of Ellen R. Coulter for the death of her husband, J. A. Coulter, alleged to have been caused by an accident of employment on November 16, 1917, at the plant of the Riverside Portland Cement Company, near Riverside, Cal. The Ocean Accident & Guarantee Corporation and the Employers' Liability Assurance Corporation were insurance carriers for the Wellman-Lewis Company, copartnership, while the Ætna Life Insurance Company was the insurance carrier for the Riverside Portland Cement Company. These insurance carriers each claim exemption from liability upon the ground that the partnership or corporation insured by them, respectively, was not the employer of the deceased at the time of his death. They also claim that, the award was improper for the reason that the evidence was insufficient to establish the fact that the death of the decedent resulted from injuries arising out of, or received in the course of his employment. The Ocean Accident & Guarantee Corporation also claims that the award against it is improper for the reason that both parties admitted that, by mutual mistake, the contract covered the accident in question, while the real contract was intended to cover work then being carried on at Hemet only, and that before the hearing the policy had been amended by mutual consent.

The Riverside Portland Cement Company, which will hereafter be referred to as the "Cement Company," was engaged in manufacturing cement. It became necessary to install new machinery and to rearrange the plant. The plans and specifications for such work were made by the engineers of the Cement Company. The Wellman-Lewis Company, hereafter called the "partnership," was engaged in the business of installing and handling large machinery, and had a number of employees experienced in that line of work. The Cement Company desired to secure the services of the partnership. An arrangement was made by which the partnership furnished to the Cement Company its employees, under a foreman also employed by the partnership. The commission, upon sufficient evidence, found the facts to be as follows:

"(7) That at the time of said injury the employee was performing service upon the premises of defendant Riverside Portland Cement Company and for its benefit; that prior to his employment an arrangement had been entered into between defendant Riverside Portland Čement Company and defendant Wellman-Lewis Company whereby the latter was to secure and furnish employees, including a foreman, to perform service on the premises of and for the benefit of the Riverside Portland Cement Company, for and in consideration of the payment to said Wellman-Lewis Company of 10 per cent. of the pay roll of the employees and foreman thus furnished; that the Riverside Portland Cement Company was to furnish all materials and was to, and did in fact, give and exercise direction and control over such employees, including said foreman; that no plans and specifications were entered into for doing such work, nor was the nature and extent of the work to be done closely defined to the said Wellman-Lewis Company nor any specific sum of money agreed upon other than as stated above; that account of the time of all such employees was kept by the Riverside Portland Cement Company, such men being required to use the time clock of the said company, and a check for the wages of such employees, plus 10 per cent., and less incidental deductions, was sent to Wellman-Lewis Company, who, in turn, paid such employees their wages; that no time was agreed upon for the completion of said work, and that the Riverside Portland Cement Company reserved the right to require the furnishing of such additional employees as it should deem necessary and to cause the discharge of any employees whom it might regard as undesirable; that said agreement between WellmanLewis Company and the Riverside Portland Cement Company was substantially an agreement to furnish labor, skilled and experienced only; that the deceased was engaged by the representatives of Wellman-Lewis Company specifically for the work in question, and had not been a regular employee of Wellman-Lewis Company prior to his being put to work at the plant of the Riverside Portland Cement Company; that the contract of hire by which the employee was engaged was entered into between himself and defendant Wellman-Lewis Company; that the employee looked to and received his pay from Wellman-Lewis Company; that WellmanLewis Company had the immediate power of hiring and discharging him, and that the employee was obliged to obey any instructions given him by the foreman furnished by Wellman-Lewis Company; that WellmanLewis Company was in fact participating in the performance of the labor upon which the employee was engaged and by virtue of the contract exisisting between it and defendant Riverside Portland Cement Company; that at the time of said injury the deceased employee was employed jointly by defendants Wellman-Lewis Company and Riverside Portland Cement Company, who were jointly associated in the carrying on of said work."

The rules of law by which it is determined whether the position of the partnership was that of an independent contractor, and, if not, whether the Cement Company was a special employer of the deceased, are well settled. In the analysis of the cases bearing upon this subject, and in

the discussion of cases analogous in their facts, it should be borne in mind that the reviewing courts are, in most instances, bound by the decision of the triers of fact.

[1] If the partnership in the instant case was an independent contractor, the award against the Cement Company was void. If, however, the relation of the partnership to the deceased was that of general employer, and that of the Cement Company was that of special employer, the responsibility is more difficult to determine, for the reason that the rules of law concerning the general and the special employer, fixing the status of the special employer, are largely the product of the effort to fix the responsibility of such special employer to third persons, under the doctrine respondeat superior, and that under this doctrine the question of extent of the control exercised by the person sought to be held responsible is largely decisive of the question, as obviously it should be. But the question of liability of the employer to the employee under the Workmen's Compensation Law is quite a different matter. Under that law we are fixing a liability which it is the policy of the law to place upon the business, or industry, in which the employee is engaged, by placing the responsibility for indemnity upon the employer. Rheinwald v. Builders' Brick & Supply Co., 168 App. Div. 425, 153 N. Y. S. 598; Rongo v. Waddington, 87 N. J. Law, 395, 94 Atl. 408; Kirkpatrick v. Ind. Acc. Ins. Comm., 31 Cal. App. 668, 161 Pac. 274. In the instant case the Employers' Liability Assurance Corporation claims "that the physical control and management of the employee is the determining factor as to who was the employer." The Ocean Accident & Guarantee Corporation contends that "the determining factor is, for whom were the individuals performing services, not what particular position they occupied.” The Ætna Life Insurance Company claims that the Wellman-Lewis Company was an independent contractor, and therefore responsible for the death of the decedent, but also contends that, if the Cement Company be considered as an employer of the decedent, it was a special employer only, and that the decedent was in the general employment of the partnership, and that under the law of this state a special employer would not be liable for compensation. If the question were altogether new, it might be said that the person who enters into the contract of employment, express or implied with the employee, is at all times to be considered the employer, as it is contended the rule should be. Neither our own decisions, nor those of other states, have pursued this simple course.

[2, 3] The constitutional provisions authorizing the Workmen's Compensation Law of necessity uses the terms "employer" and "employee" (article 20, § 21), and it must follow that in defining the terms "employer" and "employee" in any statute passed in pursuance thereof no definition therein contained can enlarge the scope of the constitutional authority. So, in determining the question as to whether or not the relationship of employer and employee exists, we must look to the general law, as well as to the terms of the statute itself. See Carstens v. Pillsbury, 172 Cal. 573, 579, 158 Pac. 218; Sturdivant v. Pillsbury, 172 Cal. 581 158 Pac. 222. This view is in accord with the statement to that effect in Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 813, 814, 159 Pac. 721, 724, where it is said:

"It is suggested that, inasmuch as the statute enjoins upon the court liberal construction, we should ignore common-law and other definitions, and should, in determining who are and who are not employees, regard only decisions under compensation act. * * * This court has always endeavored to construe the Workmen's Compensation Act liberally and with a view to carrying out its benevolent purposes, but we cannot see why we should discard the wisdom and learning of the past in our efforts to decide what the Legislature intended by the language used."

As the law recognizes that an employee may at the same time be under a general and a special employer, it would seem to follow that the