Van Horn v. Industrial Acc. Commission

• Decision Date: 21 August 1963
• Citation: 33 Cal.Rptr. 169,219 Cal.App.2d 457
• Court: California Court of Appeals Court of Appeals
• Parties: Karen Taylor VAN HORN and Craig Edward Van Horn and Connie Lynn Van Horn, Minors, by and through their Guardlan Ad Litem, Karen Taylor Van Horn, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and California State Polytechnic College, Respondents. Civ. 27105.

Page 169

33 Cal.Rptr. 169

219 Cal.App.2d 457

Karen Taylor VAN HORN and Craig Edward Van Horn and Connie Lynn Van Horn, Minors, by and through their Guardlan Ad Litem, Karen Taylor Van Horn, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and California State Polytechnic College, Respondents.

Civ. 27105.

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

Aug. 21, 1963

Rehearing Denied Sept. 19, 1963.

Hearing Denied Oct. 16, 1963.

Bacigalupi, Elkus & Salinger, Charles De Y. Elkus, Jr., William G. Fleckles, San Francisco, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, for respondent Industrial Accident Commission.

T. Groezinger, Loton Wells, Carl J. Weber, San Francisco, for respondent California State Polytechnic College.

PER CURIAM.

This is a proceeding to review an order of the Industrial Accident Commission which denied an application for death benefits to the widow and minor dependent children of Edward Gary Van Horn, who was killed on October 29, 1960 in an airplane crash while he was returning from Ohio to California with members of the football squad, officials and faculty of California State Polytechnic College in a plane provided by the college after the team, of which decedent was a member, had engaged in a regularly scheduled intercollegiate football game.

The sole question is whether decedent was an employee of the college within the meaning of the Workmen's Compensation Act so as to render the State liable thereunder for death benefits to his dependents.

There is no substantial dispute as to the facts. Decedent was an outstanding athlete in high school. The coach of the college was aware of his athletic record and advised him that he would recommend that he be given preference for a job on the college campus should he enroll there. Decedent enrolled at the college in September 1956, played on the football team during the fall term, and lived on campus. He was offered and he accepted work in the college cafeteria, for which credit was applied to his room rental. During the summer of 1957, he married. Thereafter he lived in Paso Robles and commuted to the college in San Luis Obispo, approximately 25 miles away. During the fall term of 1957 he did not participate in football. His father, widow, and a friend testified that he indicated to them that he was generally dissatisfied with the football program and withdrew from it so that he would have time to work in order to support his family. His father testified that he, as manager of a flour mill, employed decedent part time and that decedent earned $500 during the football season of 1957.

In the spring of 1958 decedent resumed football activities, working out with the team in spring training. He told his father that he had been offered a 'pretty good deal to play football * * * in order to support his family * * * he was going to have to get something to play football or he couldn't do it.' He informed his wife that the coach had told him that if he would resume playing football he would receive assistance from the college of '$50.00 at the beginning of each school quarter and $75.00 rent money during the football playing season.'

In September of 1958 and at the start of each school quarter thereafter decedent received a $50 check issued by the Treasurer of the State on behalf of the college. He received checks for three quarters in each school year. The checks contained the following notation: 'Scholarship--$50.00 San Luis Obispo City.' During the football season of 1958 he received additional checks totaling $75 directly from the coach drawn on an account in the coach's name, identified as 'Special Account--Cal Poly Athletics Dept.' During that football season decedent earned only $24 in part time work for his father. His father testified that he could have given him additional employment but decedent did not have the time to work while playing football. During the 1959 season the amount of the checks drawn on the special account by the coach in favor of decedent was increased to $100.

In the fall of 1960 decedent received the $50 check issued by the State Treasurer at the beginning of the fall quarter. He received a $50 check drawn by the coach about the time the team played its first game. He received a second $50 check drawn by the coash shortly before his death. His widow had the second check in her possession when she was notified of his death. She returned it to the coach, asking that he rewrite it to her order. The coash then sent her a check for $100. The coach explained that the extra $50 represented an advance of the quarterly payment to be made by the college at the beginning of the second quarter as prior to his death decedent had requested, and he had promised decedent that he could have the payment in advance.

In the year 1960 decedent worked for the college athletic department, lining the football field, for which he was paid by the hour. With this exception, he did no work for the college after his first year there.

The annual total of $150, paid to decedent by the college in $50 quarterly payments, was denoted as 'athletic scholarship.' The funds were raised and contributed to the college by a group of alumni and business people of the San Luis Obispo community known as the Mustang Booster Club. As athletic director of the college, the coach periodically submitted to the Booster Club a requested budget containing the names of students he wished to have assisted during the ensuing school year. The funds contributed by the Booster Club were distributed by the college to students who qualified. To qualify, a student was required to maintain a 2.2 grade average while carrying 12 units of college courses, be a potential athlete, and be recommended by the coach to the scholarship committee. The coach recommended only those who were on the team. He had no power to overrule the scholarship committee or to terminate a scholarship before its term had elapsed. While no condition that the funds be used for tuition and books was imposed on recipients, the amount of the 'scholarship' was based on the approximate cost of these items.

In explanation of the special account from which he personally paid sums to the athletes, the coach testified that a portion of the funds collected by the Mustang Booster Club was deposited directly in that account and was distributed by him to married members of the team who lived off campus. It had been the custom since before he came to the college some eleven years previously to provide these payments to married members of the athletic team to subsidize their rental expenses so as to make them comparable to the rates on campus. No condition that the funds be used for the payment of rent was imposed on the recipients. The dean of the college was cognizant of this program of financial assistance to athletes.

The college is a state college under the control of the trustees of California State Colleges. The trustees are authorized to accept any gift or donation of real or personal property whenever such gift and the terms and conditions thereof will aid in carrying out the primary function of the colleges. (Ed.Code § 24000.) The primary function of the colleges is to provide instruction at the undergradute and graduate levels. (Ed.Code § 22606.) The athletic program of California State Polytechnic College is a part of the curriculum and one-half unit of academic credit is earned for each quarter's participation on an athletic team. Decedent had earned the required academic credit for six quarters by the fall of 1959. He received additional credit in the spring of 1960 and would have received further additional credit for participation in football upon completion of the fall quarter of 1960.

Petitioners' contention is that decedent participated in the college football program under a contract of employment with the college. Respondents contend that decedent's participation in football was voluntary and the 'scholarship' was a gift, not payment for services. The commission, after reconsideration, affirmed the referee's denial of benefits to petitioners and adopted his conclusions that decedent was not an employee of the college, there was no contract of employment or hire, and, in any event, playing on the college football team was not 'rendering services' within the meaning of the Workmen's Compensation Act.

'The question of whether a worker is an employee within the meaning of the Compensation Act * * * is referred to as a question of mixed law and fact to be proved like any other question. [Citations.] It is a question of fact upon which the judgment of the commission is conclusive where the facts are in dispute. It becomes a question of law only when but one inference can reasonably be drawn from the facts. Where two opposing inferences may be drawn from the evidence, and the inference accepted by the commission is reasonable, and is supported by evidence in the record, that inference must be sustained.' (Schaller v. Industrial Acc. Com., 11 Cal.2d 46, 51, 77 P.2d 836, 839.)

"Employee' means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, * * *.' (Lab.Code § 3351.) The state and all state agencies are employers subject to Workmen's Compensation liability. (Lab.Code § 3300.)

If services are voluntarily rendered without compensation, there is no employment relationship. (Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729 [volunteer U.S.O. hostess gave services gratuitously; held: not an employee]; Peterson v. Twentieth Century Fox Films, 76 Cal.App.2d 587, 173 P.2d 851 [naval enlisted man directed by superior officer to assit defendant in making motion picture; held: not an employee of defendant].) However, direct compensation in the form of wages is not necessary to establish the relationship so...