# Silberman v. Industrial Accident Commission

> California Supreme Court · February 17, 1943 · 21 Cal. 2d 609

URL: https://www.frixlaw.com/law-library/cases/9551767

## Case

- **Full name:** L. H. SILBERMAN, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, IRVIN CLARK Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** February 17, 1943
- **Citations:** 21 Cal. 2d 609; 134 P.2d 228; 1943 Cal. LEXIS 289
- **Precedential status:** Published
- **Opinion:** Concurrence by Curtis
- **Judges:** Shenk, Curtis
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9551767

## Opinion text

CURTIS, J.
— I dissent.
The majority opinion holds that petitioner Silberman, as the special employer, is jointly liable with the Mills Construction Company, the general employer, for injuries sustained by an employee of the general contractor.
It was the duty of Silberman to load the rails, referred to in the opinion, after they were removed from the streets of the city of Pasadena. The Mills Construction Company agreed to load the rails and Silberman agreed to pay the company the entire expense incurred by it in doing said work, including the wages of the men employed, “liability, compensation insurance, wage tax and overhead fees for handling this material.” The company hired Clark and all other men on the job, paid them their wages, and took out compensation insurance covering them. Silberman paid the company in full for these charges. He had no control over any of the employees of the company. As stated by the commission in its answer: (page 6) “For the purpose of seeing that the Mills Construction Company carried out its end of the contract, the petitioner (Silberman) kept a representative in the person of David S. Friedner at the place where the work un *614 der the contract was being performed. ’ ’ But neither Silberman nor his representative had any control over any of the company’s employees. The representative was simply to see that the company performed its contract.
This court has held “. . . that for liability to attach to the the special employer the injured person must have been at1 the time of the accident subject to the direction and control of such special employer, for it is this right to control and direct the activities of the employee that gives rise to the status of special employer.” (Independence Indemnity Co. v. Industrial Acc. Com., 203 Cal. 51, 55 [ 262 P. 757 ].)
The commission found that Mills Construction Company was insured and that Silberman was not insured. He evidently acted upon the assumption that as long as he was paying the Mills Construction Company for insuring the men employed by it on the job, it was not necessary for him to pay double insurance. As a result of the opinion, Silberman, although he has paid for full compensation insurance to protect the employees of the company, nevertheless is still held personally liable for injuries sustained by one of them.
In my opinion the award against Silberman should be annulled.
Edmonds, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9551767. Public record. Not legal advice.