2. MASTER AND SERVANT-FINDING OF ELECTION UNDER WORKMEN'S COMPENSATION LAW IS RENDERED UNNECESSARY BY STIPULATION.

A finding that the employers had elected to submit themselves to the Workmen's Compensation Law is unnecessary where the parties have stipulated that such was the fact.

(For other cases, see Master and Servant, Dec. Dig. § 417.)

Proceedings under Workmen's Compensation Law by Mrs. Etta M. Schrock and others to recover compensation for the death of A. B. Schrock, employee opposed by Singleton & Haskell, employers, and Globe Indemnity Company, a corporation, insurance carrier. An award of compensation was made by the Industrial Accident Commission, and the insurance carrier brings certiorari. Award affirmed.

H. W. Kidd, of Los Angeles, and A. J. Verheyen, of Hollywood, for petitioner.

A. E. Graupner, of San Francisco, for respondents.

JAMES, J. The indemnity company petitioner brought this proceeding for the purpose of obtaining a review of the evidence and findings made by the Industrial Accident Commission under which an award was entered.

Defendants Singleton & Haskell were copartners engaged in the dairy business. Petitioner was the insurance carrier. In September, 1918, A. B. Schrock, by occupation a carpenter, was employed by the copartners. He had been so employed at intervals for a considerable length of time doing cement and carpenter work as required. In the month mentioned he had built a silo on the dairy farm of the copartners, and, after a short interval, was called to build a second silo, upon which he was working when the scaffolding gave way, precipitating him to the bottom of the structure, and causing a fracture of the skull from which he died. Compensation was asked for on the part of the widow and minor children, and an award was made against the indemnity company here complaining.

[1] The first point made is that the engagement of the deceased was both casual and not in the course of the business or occupation of his employers. That it was casual may be admitted; that it was in the course of the business of his employers is fully borne out by the testimony. On that point one of the copartners testified as follows:

"Q. Now, these silos that were being built, especially the one on which he was working at the time of his death, for what purpose are they used? A. Well, they are for putting our corn in, to keep the ensilage for the winter. O. For the manufacture of ensilage for winter feed, and that winter feed is fed to milk cows? A. Yes. Q. Part of your business, is it? A. Yes. Q. It is your business to feed cows and produce milk, and the work he was doing was to erect a silo to further that purpose? A. Yes.

It would seem that the having of these receptacles for the storing of feed for the dairy cows was as essential to the business conducted by the copartners as the maintaining of barns for the shelter of the animals, or in which hay or other fodder might be kept. This first contention made by petitioner, we think, is so plainly without substantial merit as to deserve no further discussion.

The second point relied upon is that there was no sufficient evidence or finding to show that the employers of Schrock (being engaged in a business expressly exempted from the provisions of the Employers' Liability Act [St. 1917, p. 831] had, as they were permitted to do, elected

we think sufficient appears from the testimony of the injured employe and others to show that there was sufficient evidence before the commission to sustain the award.

Jordan, while denominated a truck driver, and while such was in the main his employment, was also made use of by his employers to do other things than such as would come within the strict course of his duties as such truck driver. The testimony, for example, shows that upon other occasions, while awaiting a truckload of lumber at the mill, he would join with those immediately in charge of the saws in the task of sawing out such lumber. He was thus familiar with the work of running such saws, and it is not contended herein that his injuries were the result of any lack of skill or knowledge as to the manipulation of the saw which he was making use of at the time of his injuries. There is evidence also tending to show that on prior occasions he had been instructed to do work which required him to use or assist in using the saws. He also testifies that upon prior occasions he had been accustomed to make such repairs and changes in his truck as might be needed or as would facilitate the work which he was required to do with it. The particular changes which he was undertaking just prior to his injuries were such as would facilitate the performance of the immediate work which he had been ordered to do, and would thus be beneficial to his employer. On the particular occasion Jordan took the boards he had selected into the mill for the purpose of having them sawed into proper lengths. One of the regular sawyers asked him what was wanted, and Jordan replied that he desired to have the board sawed. The sawyer told him to wait a few minutes and he would do this, but Jordan, being in a hurry, undertook to use the saw himself. No objection to his doing so was made by the sawyer, and in fact Jordan testifies that he had never been instructed not to use the saws, but, on the contrary, used them for the doing of other work upon prior occasions with the knowledge of his employer and without objection. While the evidence with respect to some of these matters is conflicting, and while, on the whole, the weight of such evidence might preponderate in favor of the petitioners, we are still of the opinion that if the commission believed the statements made by Jordan in the premises it would have been entitled to make an award in his favor based thereon.

The petition will therefore be denied, and the award sustained. It is so ordered.

We concur: Waste, P. J.; Kerrigan, J.

GLOBE INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA ET AL. (Civ. 3114.)

(District Court of Appeal, Second District, Division 1, California. Dec. 30, 1919.)

187 Pacific Reporter, 452.

1. MASTER AND SERVANT CARPENTER BUILDING SILO FOR DAIRY PARTNERSHIP INJURED IN EMPLOYER'S BUSINESS WITHIN WORKMEN'S COMPENSATION ACT. Where a carpenter employed by a partnership to build a silo on its dairy farm died from a fracture of the skull caused by the fall of a scaffold, the accident occurred in the course of the business of employers; the silo being essential to the business.

(For other cases, see Master and Servant, Dec. Dig. § 371.)

2. MASTER AND SERVANT-FINDING OF ELECTION UNDER WORKMEN'S COMPENSATION LAW IS RENDERED UNNECESSARY BY STIPULATION.

A finding that the employers had elected to submit themselves to the Workmen's Compensation Law is unnecessary where the parties have stipulated that such was the fact.

(For other cases, see Master and Servant, Dec. Dig. § 417.)

Proceedings under Workmen's Compensation Law by Mrs. Etta M. Schrock and others to recover compensation for the death of A. B. Schrock, employee opposed by Singleton & Haskell, employers, and Globe Indemnity Company, a corporation, insurance carrier. An award of compensation was made by the Industrial Accident Commission, and the insurance carrier brings certiorari. Award affirmed.

H. W. Kidd, of Los Angeles, and A. J. Verheyen, of Hollywood, for petitioner.

A. E. Graupner, of San Francisco, for respondents.

JAMES, J. The indemnity company petitioner brought this proceeding for the purpose of obtaining a review of the evidence and findings made by the Industrial Accident Commission under which an award was entered.

Defendants Singleton & Haskell were copartners engaged in the dairy business. Petitioner was the insurance carrier. In September, 1918, A. B. Schrock, by occupation a carpenter, was employed by the copartners. He had been so employed at intervals for a considerable length of time doing cement and carpenter work as required. In the month mentioned he had built a silo on the dairy farm of the copartners, and, after a short interval, was called to build a second silo, upon which he was working when the scaffolding gave way, precipitating him to the bottom of the structure, and causing a fracture of the skull from which he died. Compensation was asked for on the part of the widow and minor children, and an award was made against the indemnity company here complaining.

[1] The first point made is that the engagement of the deceased was both casual and not in the course of the business or occupation of his employers. That it was casual may be admitted; that it was in the course of the business of his employers is fully borne out by the testimony. On that point one of the copartners testified as follows:

"Q. Now, these silos that were being built, especially the one on which he was working at the time of his death, for what purpose are they used? A. Well, they are for putting our corn in, to keep the ensilage for the winter. Q. For the manufacture of ensilage for winter feed, and that winter feed is fed to milk cows? A. Yes. Q. Part of your business, is it? A. Yes. Q. It is your business to feed cows and produce milk, and the work he was doing was to erect a silo to further that purpose? A. Yes.

It would seem that the having of these receptacles for the storing of feed for the dairy cows was as essential to the business conducted by the copartners as the maintaining of barns for the shelter of the animals, or in which hay or other fodder might be kept. This first contention made by petitioner, we think, is so plainly without substantial merit as to deserve no further discussion.

The second point relied upon is that there was no sufficient evidence or finding to show that the employers of Schrock (being engaged in a business expressly exempted from the provisions of the Employers' Liability Act [St. 1917, p. 8311 had, as they were permitted to do, elected

to bring themselves under the provisions of the act in question. We quote paragraphs 3, 4, and 5 of the findings as follows:

"(3) That at the time of said injury said employers were engaged in the occupation of conducting a dairy, and said employe was engaged in building a silo for the storing of ensilage for feeding cows at said dairy; that thereafter said employe was at said time engaged in dairy labor within the meaning of section 8 of the Workmen's Compensation, Insurance and Safety Act of 1917; that at said time said employers were insured against liability for compensation under said act by defendant Globe Indemnity Company, a corporation, by a policy which covered the applicant; and that therefore the parties hereto were at the time of said injury subject to the provisions of said act and to the jurisdiction of this commission.

“(4) That the employers had knowledge of said injury as defined by section 15 of said act.

"(5) That the defendant Globe Indemnity Company, a corporation was at the time of said injury the insurance carrier for said employers, and is liable for the full compensation which the employers are liable to pay, and that said employers are therefore entitled to be relieved from liability on account of such injury and to be dismissed from this proceeding."

[2, 3] It may be correct to say that by finding 3 an election on the part of the employers to submit themselves to the provisions of the law is not expressly determined, but, even though such an admission be made, the evidence is ample to the point, and in that particular takes the form of a stipulation. It is unnecessary to cite authorities that facts admitted in the pleadings or stipulated to be true need not be made the subject of a finding. At page 19 of the record submitted we find that the following occurred while one of the partners was being examined as a witness:

"Q. Do you and Mr. Singleton engage in any other business besides that of the dairy business? A. No; only just that ranch up there is what we have together. Q. Have you signed an acceptance of the Workmen's Compensation Law for yourself and for your employes and taken out insurance? A. Yes; we have; we have taken out insurance. "The Referee: I suppose you folks will stipulate to that? "Mr. Kidd: Yes; I admit that to be a fact."

We construe that stipulation to be an admission both that an election had been made by the employers to bring themselves within the provisions of the Compensation Law, and also that insurance had been taken out thereunder. Further than this, the answer of the indemnity company petitioner as filed with the commission contained the following admission:

"Admits that on or about September 23, 1918, Absalom B. Schrock met with a certain accident by reason of which he was killed, and that when so injured he was in the employ of the defendants, W. H. Singleton and James S. Haskell, and that at the time of the happening of the said accident and of the death of said Absalom B. Schrock said Globe Indemnity Company had issued and outstanding a certain policy of insurance indemnifying said Singleton and Haskell within the limits expressed in said policy from the liability imposed on them by law under the terms of the Workmen's Compensation, Insurance, and Safety Act of the state of California, and that the defendant employers and this answering defendant had due and sufficient notice of the happening of said accident and of the said death."

Again, we find a stipulation in writing made by petitioner in the course of proceedings before the commission, which reads as follows:

"It is stipulated that the defendant Globe Indemnity Company, a corporation, was, at the time of the injury which forms the subject

matter of the above-entitled proceeding, the insurance carrier for the employer and had insured the employer against liability for compensation to the employe under the Workmen's Compensation, Insurance and Safety Act of 1917, and is liable for the full compensation which the employer is liable to pay, if any."

Throughout the record made at the hearing before the commission up to the point that a rehearing was asked for, it is not apparent that there was any dispute between petitioner and its adversaries regarding the fact that the employers of Schrock were, in the transaction of their business amenable to the provisions of the Compensation Law.

We find no further points made in the brief filed by petitioner which merit or require additional discussion.

The findings and award of the respondent commission are affirmed. We concur: Conrey, P. J.; Shaw, J.

MORENO ET AL. v. LOS ANGELES TRANSFER CO. (Civ. 3023.) (District Court of Appeal, Second District, Division 2, California. Dec. 2, 1919. Hearing Denied by Supreme Court. Jan. 29, 1920.) 186 Pacific Reporter, 800.

1. MASTER AND SERVANT-INSURANCE CARRIER AND EMPLOYEE MAY SUE TORT-FEASOR WITHOUT AWARD UNDER WORKMEN'S COMPENSATION.

An insurance carrier and an injured employee may jointly sue the party negligently causing the injury without a formal award of workmen's compensation, since the liability to pay the compensation is created by the act, and not by the award.

(For other cases, see Master and Servant, Dec. Dig. § 389.)

Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by Melquiades Moreno and another against the Los Angeles Transfer Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hickcox & Crenshaw and Wheaton A. Gray, all of Los Angeles, for appellant.

George J. Denis and George W. McDill, both of Los Angeles, for respondents.

THOMAS, J. In this action plaintiffs seek to recover from the defendant damages for personal injuries sustained by plaintiff Moreno by reason of the alleged negligence of an employe of defendant. The case was tried before a jury. Verdict was rendered in favor of plaintiffs for the sum of $10,000, and judgment entered accordingly. There was a motion for new trial, which was denied. The appeal is from the judgment alone.

It appears that on the day of the accident the plaintiff Moreno was employed by the Fairchild-Gilmore-Wilton Company, and had been detailed by a foreman of that company to go as a helper with one of its steam roller drivers to assist the latter in moving a heavy steam roller. As such helper his duties were to care for traffic. He road on the roller.