(228 P.) "1 (a) Ditch digging-no sewer or canal record before us relating to a contemporanebuilding or excavation for water or gas mains-ous interpretation placed upon the coverage no blasting. "(6225) "Waterworks-laying of mains and surface or house connections (no tunneling or blasting). "(6321) of this policy by the action of the parties to it. It seems that upon two occasions prior to the casualty which gave rise to this proceeding workmen of the insured, while engaged upon this particular job, had received "Gasworks-laying of mains and connections minor injuries which, while not serious (no tunneling or blasting). "(6324)." enough in their nature to come before the Industrial Accident Commission, were sufficiently serious to require medical attention, and that in each of these cases the injured employees had been sent to the official physician of the insurer for treatment and had received such treatment, which facts were reported by the insured to the representatives of the insurer. The record also discloses that the employer was a general contractor and as such had been carrying insurance with this petitioner for several years prior to that in which the injury to his deceased employee occurred, and during which time he was engaged in such various occupations as digging ditches, bricking up stream boilers, laying concrete floors and sidewalks, cleaning tanks, repairing elevators, etc., and during which various employments his pay rolls were periodically inspected by his insurer and his premium rates fixed and paid according to the classification in general use by all companies carrying workmen's compensation insurance, wherein the amount of premium is based upon the hazard of the particular occupation. It is the contention of the respondents herein, however, that the clauses in the foregoing "Classification of Operations," apparently exempting sewer or canal building or excavation for water or gas mains and also tunneling and blasting from such classification, was not intended to have that meaning or effect, but that these exceptions were merely intended to differentiate these operations from "ditch digging" or "waterworks" or "gas works" as to the rate of premium to be paid by the insured; or, in other words, to protect the insurer against any claim of the insured that the specified premium paid by him for coverage while engaged in "ditch digging" would suffice for coverage while building sewers or canals or making excavations for water or gas mains, or for blasting, in connection with any of the operations, or that the specified premium paid for coverage while laying mains and connections for waterworks or gasworks should suffice for coverage for the more dangerous operations of tunneling or blasting, if This evidence is in harmony with the intercarried on during these occupations. A crit-pretation which the respondents herein ical examination of this "Classification of Operations" shows plainly on its face that such and such only was the purpose of the several apparent "exceptions" embraced therein. For example, the first of these classifications specifies "ditch digging," but exempts from this classification "sewer or canal building or excavation for water or gas mains." It was evidently not intended to thereby exclude "excavations for water or gas mains" from coverage by this policy since the next two clauses in said classification expressly permit and embrace the laying of mains and connections for water and gasworks. [2] In view of these facts, the utmost that can reasonably be claimed by the petitioner herein is that these classifications are uncertain as to just what operations were intended to be included within or excluded from their provisions, and this being so, under section 1654 of the Civil Code, the policy is to be construed most strongly against the insurer who drew the policy and caused the uncertainty to exist. Maryland Casualty Co. v. Industrial Acc. Comm., 178 Cal. 491, 173 Pac. 993. There is also some evidence in the would have us place upon this insurance policy read as a whole, and which we think should be placed thereon. It is also in harmony with the provisions of section 29 of the Workmen's Compensation Act as revised and amended in 1917 (Stats. 1917, pp. 831, 857), which requires that every employer coming within the terms of said act shall secure the payment of compensation to his employees by insuring and keeping insured against liability, either in one or more of the insurance carriers duly authorized to write compensation insurance in this state, or by securing from the commission a certificate of consent to self-insure, under penalties for failure so to do. Reading this insurance policy as a whole, in the light of the record before us and of the general policy of the law touching the matter of compensation insurance, we are satisfied that the interpretation which the petitioner would have us place upon its liability under the form of this policy cannot be approved. The award is affirmed. We concur: MYERS, C. J.; SHENK, J.; SEAWELL, J.; LAWLOR, J.; WASTE, J. demurrer. It is quite voluminous, and con ERNSTING et al. v. THE UNITED STAGES tains much irrelevant and immaterial matter, et al. (L. A. 7645.) (Supreme Court of California. July 28, 1924.) 1. Trusts 371(1)-Amended complaint in equitable action to impress corporation's property with trust held to state, a cause of action. In equitable action by owners of auto stages to impress property of corporation with trust to extent of value of rights which had been diverted by alleged fraudulent acts of plaintiffs' agent in obtaining franchise to operate auto stages in name of the, corporation of his own creation, amended complaint held to state a cause of action. which has contributed to a confusion of the main without objection. No brief has been issues. This matter was permitted to represented on behalf of respondents. [1] It seems to be the theory of appellants, and perhaps the complaint contains allegations sufficiently direct and positive to support it, that appellants, after the adoption of the Auto Stage and Transportation Act, approved May, 1917 (chapter 213, p. 330, Stats. 1917), which placed with the Railroad Commission the supervision and regulation of auto stage transportation, appointed Thomas Morgan their attorney in fact and representative to appear before the commission in their behalf in the matter of fixing rates, fares, charges, classifications, rules, and regulations, and to represent them in all matOrders and judgments of Railroad Commis-ters necessary to be done by said act. It is sion on matters that clearly fall within its ju- alleged that each of the appellants, includrisdiction are final and conclusive. 2. Public service commissions 19(1)-Orders and judgment of Railroad Commission on matters within its jurisdiction are conclusive. In Bank. Appeal from Superior Court, Imperial County; Marvin W. Conkling, Judge. Robert G. Hill, of El Centro, for appel lants.. S. W. Thompson and Herbert Kidd, both of Los Angeles, for respondents. ing the "United Stages," was actually operating in good faith a transportation business over and upon certain of the routes in contest on May 1, 1917, and therefore, as in said act provided, were licensees under the act, and were not required to obtain from the commission a certificate of public convenience and necessity. Action by Frederick Ernsting and others, members of United Stages, an association doing business under the name of United Stages, against The United Stages, a dis-. It is also alleged that appellants, long solved corporation, and others. From a judg- prior to May 1, 1917, were associated in ment of dismissal, plaintiffs appeal. Re-operating an auto stage transportation busi versed. ness in the name of the "United Stages," and as such had earned, through the operation of said auto stages by its members and by the association as such, permits and licenses to do so; further, that said Morgan was appointed the attorney in fact of appelSEAWELL, J. Appeal from a judgment lants and authorized and empowered to make dismissing action, after demurrer sustained application to the Railroad Commission for to the fourth amended complaint without appellants in the name of "United Stages," leave to amend. The complaint contains to be placed under the supervision and regutwo counts. The action was brought to en-lation of said commission in the conduct of join a sale threatened to be made by defend-its business by authority of the license and ant Thomas Morgan of a franchise confer- privilege which it had theretofore earned, ring the right to operate auto stages over a described section of certain public highways of Imperial, San Diego, Los Angeles, and Santa Barbara counties, and to prevent the leasing of another section, both of which, it is claimed, are parts of a general system owned by plaintiffs; also to reform a lease of said franchise made between certain party litigants, and to quiet title to said franchises, for an accounting, and general relief. but that said Morgan, in violation of his duty and trust, made said application in the name of the "United Stages, Inc.," a corporation of his own creation, and in which the appellants had no interest whatsoever and that all of the rights, privileges, and prerogatives to which said "United Stages" was entitled were, by the fraud and deceit of said Morgan, obtained for and on behalf of said "United Stages, Inc.," and The demurrer was general. The amended have since been used, exercised, and enjoyed complaint is nebulous, and, had it been de- by said corporation, to the exclusion of apmurred to on any one of the special grounds pellants, and that all the property rights named in subdivisions 7, 8, and 9 of section which they rightfully owned in the way of 430, Code of Civil Procedure, such a demur- franchises, permits, and privileges were made rer could have been properly sustained. We use of wrongfully to influence the commishave given much time to an examination of sion to transfer them to the use and benethe pleadings, with the view of determining fit of said corporation and to deprive the whether it is sufficient as against a general appellants thereof. In short, appellants are For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (228 P.) seeking by an equitable action to impress the property of said corporation with a trust to the extent of the value of the rights which they claim have been diverted by reason of the alleged fraudulent transaction. [2] While we recognize the infirmities of the pleading, we are of the opinion that appellants have sufficiently alleged matters of a substantial character to permit them to go to trial. We do not wish to be understood by our ruling that this court will review the orders or judgments of the commission in matters that clearly fall within the jurisdiction of that body. In such cases its judgments are final and conclusive. The judgment is reversed. We concur: MYERS, C. J.; LAWLOR, J.; LENNON, J.; RICHARDS, J.; WASTE, J. FAMOUS PLAYERS LASKY CORPORATION et al. v. INDUSTRIAL ACCIDENT COMMISSION OF STATE OF CALIFORNIA et al. (S. F. 11017.) (Supreme Court of California. July 16, 1924.) Master and servant 367-Special employer of aeroplane pilot, furnished by general employer, held liable for compensation. Aeroplane pilot, furnished by aircraft corporation to drive its plane one day in service of moving picture corporation, who, while so engaged and acting under direction of picture corporation, sustained injuries, held entitled to recover compensation of picture corporation as special employer, though compensation for his services was to be paid to aircraft corporation. In Bank. ers Lasky Corporation. There is no material dispute as to the facts out of and in connection with which the injuries suffered by said Pugh arose. In March, 1923, the Famous Players Lasky Corporation was engaged in producing a moving picture film upon the Monterey peninsula, in the course of which certain scenes were to be filmed at Pebble Beach, near Carmel. It was deemed desirable by the representatives of the corporation to secure the use of two aeroplanes to fly within the range of the camera during these scenes, in order to give the desired effect. In seeking to procure these aeroplanes, the representatives of the corporation came into communication by telephone with the Williams Bros. Aircraft Corporation of San Francisco, which had at times operated a commercial flying field at San Carlos, but which was chiefly engaged in the business of the manufacture of aeroplane accessories, and which had a few areoplanes in stock at said place, which were used by it mainly for experimental flights in testing out aeronautical devices and equipment. They had no pilots on their regular staff, but when the request came from the Lasky Corporation they agreed to furnish them 2 aeroplanes, for which they agreed to find pilots for a total charge of $90 for the planes and pilots for the day. They accordingly sent the two aeroplanes, each with a pilot, one of which was Pugh, and each accompanied with a member of the Aircraft Corporation. The only direction given to the pilots was that they were to fly from the San Carlos field to a polo field at or near Del Monte, where they were to report to the Lasky Corporation for instructions. This they did, and after some little delay were taken by the rep Certiorari to review an award of the In- resentatives of the Lasky Corporation over dustrial Accident Commission. to the point at Pebble Beach where the Proceeding for compensation before the In- scenes were being filmed and where their dustrial Accident Commission of the State of flight was to take place. Arriving there, the California by Harvey M. Pugh, claimant, op- pilots were directed by those in charge of posed by the Famous Players Lasky Corpo- the filming to look through the camera to ration, the State Compensation Insurance get its range of vision, and to direct their Fund, and others. The Commission awarded flight accordingly, so as to come within the compensation, and the corporation named picture. This they did, but after making and the State Compensation Insurance Fund applied for certiorari. Award affirmed. F. J. Creede and T. W. Slaven, both of San Francisco, and J. L. Kearney, of Los Angeles, for petitioners. W. H. Pillsbury and Walter Christie, both of San Francisco, for respondents. one trial flight and landing were told that their planes would have to fly further out and lower in order to be in the picture. It was Pugh's better judgment that to fly lower would be dangerous, but he finally yielded to the request of the representative of the Lasky Corporation to bring his flying down to 75 feet in order to come within the scene. RICHARDS, J. The petitioners herein ap- While making this flight the plane struck an ply for a writ of review, whereby they seek air pocket and crashed to the ground, killto have reviewed and annulled a certain ing the representative of Williams Bros., who award made by the respondent commission in was a passenger with him, and seriously infavor of one Harvey M. Pugh for injuries al- juring Pugh. It would seem that, after leged to have been received by the latter reaching the scene of the flight, neither of while acting under the special employment the members of the Williams Aircraft Corpoand direction of the petitioner Famous Play-ration exercised any control or direction over For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes either of the pilots, and all of their instructions as to the time, place, and method of their flight were given them by the representatives of the Lasky Corporation. (Cal. is a part of his business, they are, for the injuries, so under the Workmen's Compensa- This court further said in reference to the case from which the above excerpt is taken: dependent contractor is not entitled to com"While we have heretofore held that an inLaw, we find nothing in our decisions which pensation under the Workmen's Compensation would prevent our following the rule announced by the Court of Appeals of New York in the case of De Noyer v. Cavanaugh, supra, and recognizing the fact that in some cases where, at the time of the accident, both the general control over the injured person through their and special employer exerted some measure of respective foremen or employees, both should be held liable." The first contention of the petitioners herein is that the Williams Bros. Aircraft Corporation occupied toward the Lasky Corporation the relation of an independent contrac-es and to the latter for damages for negligent tor, supplying these aeroplanes with their pilots to the petitioner herein for a day's service and for a fixed price; that its employees were not the employees of the petitioner, and hence that for whatever injuries their employee, Pugh, suffered in the course of that employment, the petitioner herein cannot be held liable. That this is the general rule with respect to the employees of independent contractors there can doubt, but this general rule has this imporbe no tant limitation. Where either by the terms of the contract or during the course of its performance the employee of the alleged in dependent contractor comes under the control and direction of the other party to such contract, and suffers injury in the course of and in consequence of such direction and control, the relation of both general and special employer may be held to exist, and the injured employee has been held entitled to compensation from both the general and the trial Accident Commission, 189 Cal. 459, 209 special employer. This court had occasion Pac. 31, this court, while recognizing the rule to deal with this subject, and did so exhaus- to be as above stated that where, at the time tively, in the case of Employers' Liability As- of the accident both the general and the spesurance Corporation v. Industrial Accident cial employer exercised some measure of conCommission, 179 Cal. 432, 177 Pac. 273, and trol over the injured employee, both should therein pointed out both the general principle be held liable, held upon a review of the facts and the limitation thereof, and the reason for both, and also pointed out the distinction between that case and the case of Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 Pac. 721, upon which the petitioner herein strongly relies, a distinction which has also application, we think, to the case at bar. In the case of Employers' Liability Assurance Corporation v. Industrial Accident Commission, supra, this court quotes approvingly from the case of De Noyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992, wherein that court, in reconciling its decision in that case with the case of Nolan v. Cranford, 219 N. Y. 581, 114 N. E. 1074, said: In the more recent case of Pruitt v. Indus of that case that the applicant had not brought himself within the rule entitling him to hold the general employer, but did uphold the award against the insurance carrier of the special employer. The evidence in this proceeding substantially showed that the general employer of the applicant for an award contracted to supply two aeroplanes with pilots to go to the location of the petitioner herein, at or near Carmel, there to make a flight under the direction of the rep resentatives of the petitioner while they were engaged in filming a scene for a moving picture; that such flight was to be conducted at such height and at such distance from the "Even where no property of the general camera being used in filming the scene as employer is intrusted to the employee to be would bring said planes within the range of used in the special employment, the general said camera, thus forming "atmosphere" for employer pays the compensation, may direct the background of the scene; that while the the employee when to go to work, and may pilots of said planes in going to said location discharge him for refusal to do the work of and while making their flight thereat were the special employer. The Industrial Commis- accompanied by two officials of the Williams sion, therefore, has full power to make an Bros. Aircraft Corporation, they gave to award against the general employer. not follow that by the application of this rule than that they should put themselves unIt does the pilots of said planes no other direction the special employer is not to be held in any der the direction of the representatives of case. The fact that a workman has a general and a special employer is not inconsistent with the petitioner herein as to the details of the relation of employer and employee be- said flight; that, while they doubtless might tween both of them and himself. If the men have vetoed the instructions given by peare under the exclusive control of the special titioner, they did not do so, but rather tacemployer in the performance of work which itly concurred therewith; that from the time (228 P.), Requirements of statute in aid of a great public improvement in which general welfare is concerned should be liberally construed. In Bank. Application for writ of mandate by the Anglo London Paris Company and another against Charles G. Johnson, Treasurer of the State of California. Writ granted. McKinstry, Haber & Firebaugh, of San Francisco, for petitioners. of the arrival of the pilots with their planes 2. Statutes 235-Requirements of statute and passengers at the place where the flight in which public welfare is concerned should be was to be undertaken the pilots did in fact liberally construed. conduct both their flights under the direction of the representatives of the petitioner herein; that the first flight was unsuccessful, for the reason that the planes flew too high and too near to come within the range of the camera, wherefore the petitioner's representatives directed the pilots to make another flight lower and farther away than before. The pilots, after some demurring as between themselves upon the ground that such lower flight would be dangerous, but after no conference with or direction from the representatives of the general employer, obeyed the instruction of the representatives of the petitioner who were directing the filming of writ of mandate, wherein the petitioners seek RICHARDS, J. This application is for a the scene, and flew across its range of vision to compel the respondent herein, as treasurer much nearer the surface than they them- of the state of California, to sell and deliver selves deemed safe, with the result that to- to the petitioners certain bonds designated as ward the close of the flight the plane which "highway bonds of the state of California" the pilot Pugh was driving was caught in an at the par value of $3,000,000, which said air pocket and crashed to the earth, killing bonds were bid for and purchased by the pethe passenger and seriously injuring the pititioners at a public sale thereof held at the lot Pugh. We are of the opinion that these facts, as shown in the record before us, fully justify the application of the doctrine approved by this court in the cases above referred to, holding that, when the relation of both a general and a special employer is shown to exist, the award may be sustained as against both. In the case of the general employer, such award has heretofore been upheld by this court. It will also be upheld in the case of the petitioner herein, for the reasons above set forth. The award is affirmed. We concur: MYERS, C. J.; WASTE, J.; SHENK, J.; SEAWELL, J.; LAWLOR, J. rison, Deputy Atty. Gen., for respondent. office of the respondent as such state treasurer on the 26th day of June, 1924, pursuant to certain proceedings for the issuance and sale of said bonds purporting to have been taken and had under the provisions of article 16, sections 2 and 3 of the state Constitution. The facts with relation to said proceedings are set forth in the petition herein, and are conceded to be correctly set forth therein by the return and answer of the respondent. They are briefly these: The provisions of sections 2 and 3 of article 16 of the Constitution in relation to the issuance and sale of state highway bonds adopt the provisions of the act of the Legislature approved May 20, 1915, known as the State Highways Act of 1915 (Stats. 1915, p. 650) relative to the procedure for initiating, advertising, and holding sales of such bonds. Said act provides that "The state treasurer shall give notice of the time and place of sale by publication in two ANGLO LONDON PARIS CO. et al. v. JOHN-newspapers published in the city and county SON, State Treasurer. (S. F. 11207.) (Supreme Court of California. July 8, 1924.) 1. States 153-Statutes providing for notice by publication of sale of bonds held substantially complied with. State Highways Act of 1915, adopted by Const. art. 16, §§ 2, 3, providing notice of time and place of sale of highway bonds by publication in two newspapers once a week for four weeks preceding sale, was substantially complied with by publication in two newspapers for three weeks and publication in such newspapers as combined on fourth week, where such consolidated newspaper was delivered to every subscriber of either or both of such newspapers, and was distributed in same manner in which both newspapers had been distributed. of San Francisco" (and in certain other newspapers) "once a week for four weeks next preceding the date fixed for such sale." Seetion 4. The date fixed for the sale of the bonds in question was June 26, 1924. The state treasurer duly published his notices of the sale of said bonds in the other newspapers outside of San Francisco as required by said statute. He also selected and designated as the two within the city and county of San Francisco in which such notices were to be published the San Francisco Journal and Daily Journal of Commerce and the Bulletin, each a newspaper of general circulation therein at the time of the designation and inception of such publication, and such notices were accordingly and in due form published in the San Francisco Journal and Dai For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |