Sparks v. L. D. Folsom Co.

• Court: California Court of Appeals
• Writing for the Court: SULLIVAN; BRAY, P. J., and MOLINARI
• Citation: Sparks v. L. D. Folsom Co., 217 Cal.App.2d 279, 31 Cal.Rptr. 640 (Cal. App. 1963)
• Decision Date: 18 June 1963
• Parties: L. G. SPARKS and Dorothy E. Sparks, Plaintiffs and Respondents, v. L. D. FOLSOM COMPANY, Defendant and Appellant. Civ. 21028.

Page 640

31 Cal.Rptr. 640

217 Cal.App.2d 279

L. G. SPARKS and Dorothy E. Sparks, Plaintiffs and Respondents, v. L. D. FOLSOM COMPANY, Defendant and Appellant.

Civ. 21028.

District Court of Appeal, First District, Division 1, California.

June 18, 1963.

J. T. Harrington, Salinas, for appellant.

Morgan, Beauzay & Holmes, San Jose, for respondents.

SULLIVAN, Justice.

In this action by parents for the wrongful death of their son while working on a construction job, the sole question before us is whether the trial court's determination that the decedent was an independent contractor rather than an employee of the defendant is properly supported by the law and the evidence. We have concluded that it is and that the judgment in favor of the plaintiffs and against the defendant in the sum of $17,388.40 should be affirmed.

During August 1961 the defendant L. D. Folsom, Inc. was engaged in certain construction work for the Federal Aviation Agency on Anderson Mountain near Big Sur in Monterey County. Such work involved the leveling of the top of the mountain, the construction of a retaining wall and embankment on the fill, and the compacting of the new slopes. Large quantities of earth had to be moved by suitable heavy equipment. Since the defendant itself did not have sufficient equipment of this type for the job, it made arrangements to hire additional equipment fully maintained and operated.

The deceased, Frank Sparks, and his father, L. G. Sparks, plaintiff herein, were partners in a business called 'Sparks Truck and Loader Service.' In connection with this business they jointly owned a bulldozer. In addition, L. G. Sparks was the sole owner of a Michigan loader. At the commencement of the work on Anderson Mountain, defendant, lacking sufficient equipment, arranged with Sparks Senior to hire the Michigan loader fully maintained and operated by Sparks for $13.50 per hour. The defendant also arranged to hire the bulldozer, fully maintained and operated, at $10.50 per hour. It is not clear from the record exactly when the arrangements for the latter piece of equipment were made. Under both arrangements, the wages of the operator of the equipment were included in the stipulated rate. Pursuant to the first arrangement, Sparks Senior was continuously on the job from the start engaged in loading the dump trucks used in hauling quantities of earth to the top of the mountain.

Frank Sparks, the decedent, worked not only on the Sparks bulldozer but occasionally when the bulldozer was not in use, on a grader owned by the defendant. When he worked on the Folsom grader the defendant paid him an hourly wage according to the prevailing union scale in the area, applying straight time and overtime rates. Defendant's checks for these wages were made payable to the order of Frank Sparks and reflected standard payroll deductions including social security and income taxes withheld. In such instances, the defendant paid premiums for workmen's compensation insurance covering young Sparks. However when the deceased operated the Sparks bulldozer, the defendant made payment by checks to the order of Sparks Loading and Trucking Company, the amounts of which were computed at the rate of $10.50 per hour according to the above arrangements and were not subject to any payroll deductions. The checks were in payment of 'invoice tags' presented to the defendant. In such instances defendant paid no workmen's compensation insurance premiums.

On August 28, 1961, young Sparks came to the construction site at about noon. He had been away from the job for about three or four days but had left the Sparks bulldozer there. During this time it was not in use since the defendant was not authorized to operate it in his absence. Sparks intended to take the bulldozer off of the Folsom job to another job in the general area. However Folsom's general superintendent asked Sparks if the latter's equipment could pull an earth compactor called a sheepsfoot and, having been told by Sparks that it could, arranged with the latter to hire the bulldozer at 'the same price as before, ten fifty an hour.' Upon the superintendent's direction, Sparks then took his bulldozer to a level or bench on the side of Anderson Mountain, approximately 24 feet wide and 900 feet long where he connected the sheepsfoot to it and proceeded with the earth compacting.

Sparks did this work for about three hours. The following events then occurred. The defendant had certain surplus railroad ties on the job which had been acquired for use in constructing embankments and retaining walls. One of the defendant's employees had received permission to remove these ties from the job. The ties were located on a lower level or road on the side of the mountain but such road was strewn with rocks which prevented a truck being driven in for the ties. Accordingly, defendant's general superintendent ordered young Sparks to disconnect the sheepsfoot and drive his bulldozer to the lower road for the purpose of clearing away the rocks in that area. Sparks did so and, having adjusted the blade on his equipment, was about to begin the road clearing operation when he was struck and killed by a rock which had been dumped from one of the trucks at the top of the mountain.

Arthur Kinnamon, the general superintendent on the job, after being called by plaintiffs pursuant to Code of Civil Procedure, section 2055, testified on redirect examination by defendant's counsel that Sparks Senior was at all times working under the supervision and control of Kinnamon and one Havens, a representative of the Federal Aviation Agency; that after he made the above arrangements with Frank Sparks on the day of the accident he told the latter what to do; ¹ and that the defendant maintained the right to fire Frank Sparks at any time and the latter was free to quit at any time. The plaintiff L. G. Sparks testified that while he was on the job, Kinnamon, the superintendent told him what work he wanted done; ² but that it was not specified how long he was to be there.

The trial court found that Frank Sparks was killed as a proximate and direct result of the defendant's negligence; that he 'was following an independent calling, to wit: the furnishing of a bulldozer fully serviced, maintained and operated at a rate of $10.50 an hour; [and that] said decedent was not an employee of the defendant either general or special'; and rendered judgment accordingly for the plaintiffs.

Defendant makes no attack on the finding that it was guilty of negligence proximately causing the decedent's death. Defendant's sole contention here is that uncontradicted evidence in the record establishes as a matter of law that the relationship between the defendant and the deceased was that of special employer and employee and accordingly that the trial court's finding to the contrary is unsupported by the evidence.

'An independent contractor is one who renders service in the course of an independent employment or occupation, following his employer's desires only as to the results of the work, and not as to the means whereby it is to be accomplished.' (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788, 285 P.2d 902, 803; Lab.Code, § 3353; Rest.2d Agency, § 2.) 'In determining whether an individual is an employee or an independent contractor, the most important factor is the right to control the manner and means of accomplishing the result desired. * * * And strong evidence of the employer's control is his right to discharge at will, without cause.' (California Emp. Com. v. Los Angeles etc. News Corp. (1944) 24 Cal.2d 421, 425, 150 P.2d 186, 188; see also Empire Star Mines Co. v. California, Emp. Com. (1946) 28 Cal.2dt 33, 43, 168 P.2d 686; City of Los Angeles v. Vaughn (1961) 55 Cal.2d 198, 201, 10 Cal.Rptr. 457, 358 P.2d 913.) 'Other factors to be taken into consideration are (a) whether or not the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. Rest., Agency, § 220; Cal.Ann. § 220.' (Empire Star Mines Co. v. California Emp. Com., supra, 28 Cal.2d at pp. 43-44, 168 P.2d at p. 692. In accord: Malloy v. Fong (1951) 37 Cal.2d 356, 370-372, 232 P.2d 241.)

However, while the right to discharge at will is strong evidence of the right of control (see cases, supra), the contractual arrangement between the parties may be such that the right to discharge does not point to a relationship of employer and employee or necessarily preclude one of employer and independent contractor. Thus where there is an indivisible contractual arrangement for manpower and equipment, although the employer may terminate the hiring and rule both off the job, he cannot discharge the operator and retain the equipment or dispense with the equipment and retain the operator. Such an arrangement may present strong indicia of the relationship of employer and independent contractor and in such a situation the right to discharge, which is in reality the right to terminate the arrangement as a whole, may not necessarily import the authoritative control implicit in an employer-employee relationship. (Western Indemnity Co. v. Pillsbury (1916) 172 Cal. 807, 812-813, 159 P. 721; Luckie v. Diamond Coal Co. (1919) 41 Cal.App. 468, 482, 183 P. 178; Counihan v. Lufstufka Bros. & Co. (1931) 118 Cal.App. 602, 605, 5...