Isenberg v. California Employment Stabilization Commission

SCHAUER, J., Dissenting.

I agree with the views expressed by Mr. Justice Edmonds. I am thoroughly cognizant of the (at least to the involved agencies) administrative desirability of having a simple, absolute, and universal or rule of thumb method for classifying entire industrial or professional groups as employes or nonemployes. But that desirability certainly does not warrant this court in departing from constitutional standards. Is it the intention of the majority of this court to hold that as a matter of law all jockeys who ride horses for compensation, regardless of the more specific terms of their several contracts, are employes? If that is not the effect of the holding its avowed object is not attained. If that is the effect of the holding it means that stable owners and riders no longer are permitted the freedom of mutually contracting such reciprocal relationships as they may agree upon. No longer do they have the right or capacity to establish the character of their obligations to each other. No matter how specific may be the terms by which they agree that the rider is a skilled specialist, that he shall furnish his own equipment, that he shall undertake a single project to be performed in his own way without any supervision or direction of the owner, the result will be the same as though the converse of all those heretofore material elements were substituted.

It is difficult for me to believe that the majority actually subscribe to the doctrine above indicated. But if they do not subscribe to it then not only do they fail to achieve the assertedly desirable objective of administrative universality but the only other rational basis for their holding in this case is equally disturbing. It means not that there shall be uniformity in classifying all jockeys as employes but that the majority have weighed the evidence in this one case and have themselves elected to draw inferences contrary to those drawn by the trial court. The evidence related by Mr. Justice Edmonds is in the record. It admits of the inferences suggested by him. Those inferences support the trial court’s judgment. The functions of trial and appellate courts are *46 constitutionally disparate and no rule should be more scrupulously observed by courts of appeal than that in their appellate work they should not encroach upon or usurp a trial court function. The resolution of factual questions including the determination of the inferences to be drawn from the evidence whether that evidence be documentary or undisputed or otherwise, is in a major sense exclusively the province of the trial court (or of the jury). It is exclusive in the trial court (or jury) in the sense that the appellate court is given no right to resolve factual conflicts or to indulge its preference as to the selection of inferences from the evidence. It is only where clearly there is no substantial evidence from which essential inferences can be drawn that the appellate court may properly interfere in a factual sense; and its interference then should be both in form and in substance by a statement of the law, not a declaration of fact. Any other course by an appellate court is dictatorial in nature and tends toward depriving litigants of the constitutional standards of a fair trial.

The principles involved in this case are markedly similar to those in Cardillo v. Liberty Mutual Ins. Co. (1947),--U.S.-- [ 67 S.Ct. 801 , 91 L.Ed.--]. There the critical question was whether the injury was one “arising out of and in the course of employment. ” In a proceeding before the commissioner under the District of Columbia Workmen’s Compensation Act it had been found that the injury which resulted in the decedent’s death had so arisen and an award was made to the widow. The employer and insurance carrier brought action in the district court to annul the award; they contended that there was “a lack of substantial evidence” to support the essential finding. The district court held that the findings “were supported by evidence in the record” but the Court of Appeals reversed. The Supreme Court in reversing the Court of Appeals and reinstating the judgment of the district court said: (pp. 806-807 of 67 S.Ct.) “In determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. . . . If supported by evidence and not inconsistent with the law, the Deputy Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because *47 of a belief that the one chosen by the Deputy Commissioner is factually questionable. Voehl v. Indemnity Ins. Co., supra [288 U.S.] 166 [ 53 S.Ct. 380 , 77 L.Ed. 678 , 87 A.L.R. 245 ] ; Del Vecchio v. Bowers, 296 U.S. 280, 287 [ 56 S.Ct. 190 , 80 L.Ed. 229 ]; South Chicago Co. v. Bassett, 309 U.S. 251, 257-258 [ 60 S.Ct. 544 , 84 L.Ed. 732 ] ; Parker v. Motor Boat Sales, 314 U.S. 244, 246 [ 62 S.Ct. 221 , 86 L.Ed. 184 ]; Davis v. Department of Labor, supra [317 U.S.] 256 [ 63 S.Ct. 225 , 87 L.Ed. 250 ].

“It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. See Boehm v. Commissioner, 326 U.S. 287, 293 [ 66 S.Ct. 120 , 90 L.Ed. 78 , 166 A.L.R 708]. It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. Del Vecchio v. Bowers, supra [296 U.S.] 287 [ 56 S.Ct. 190 , 80 L.Ed. 233 ], Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. Labor Board v. Hearst Publications, 322 U.S. 111, 131 [ 64 S.Ct. 851 , 88 L.Ed. 1170 ] ; Commissioner v. Scottish American Co., 323 U.S. 119, 124 [ 65 S.Ct. 169 , 89 L.Ed. 113 ] ; Unemployment Compensation Commission v. Aragan, 329 U.S. 143 [ 67 S.Ct. 245 , 91 L.Ed.--]. Even if such an inference be considered more legal than factual in nature, the reviewing court’s function is exhausted when it becomes evident that the Deputy Commissioner’s choice has substantial roots in the evidence and is not forbidden by the law.” (Italics added.)

Again, in an action which originated in a state court under the Federal Employers Liability Act (35 Stats. 65, as amended, 45 U.S.C. § 51 et seq.) and which was before the United States Supreme Court on certiorari after the state Supreme Court had reversed a trial court “for insufficiency of evidence to show negligence,” the highest court said (Ellis v. Union Pacific Railroad Co. (1947), 329 U.S. 649 [ 67 S.Ct. 598, 600 , 91 L.Ed.--]) “The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the *48 jury. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29 [ 64 S.Ct. 409 , 88 L.Ed. 520 ]; Lavender v. Kurn, supra [ 327 U.S. 645 ( 66 S.Ct. 740 , 90 L.Ed. 916 ).] Once there is a reasonable basis in the record for concluding that there was negligence which caused the injury, it is irrelevant that fair-minded men might reach a different conclusion. For then it would be an invasion of the jury’s function for an appellate court to draw contrary inferences or to conclude that a different conclusion would be more reasonable.” (Italics added.) To the same effect is Eagles v. United States ex rel. Samuels (1946), 329 U.S. 304 [ 67 S.Ct. 313 , 91 L.Ed. ---] (the case of a selective service registrant seeking to evade service as a theological student), where the court, in recognizing the force of that class of practical evidence which so often appears to the fact finder but which cannot be reflected in a phonographic record, said: “A registrant might seek a theological school as a refuge for the duration of the war. Congress did not create the exemption . . . for him. There was some evidence that this was Samuels’ plan; and that evidence, coupled with his demeanor and attitude, might have seemed more persuasive to the boards than it does in the cold record. Our inquiry is ended when we are unable to say that the board flouted the command of Congress in denying Samuels the exemption.” (Italics added.) See, also, Estate of Bristol (1943), 23 Cal.2d 221, 223 [ 143 P.2d 689 ].

For the reasons above set forth I would affirm the judgment of the trial court.