dango Lumber Company, a corporation, the Sunset Lake Lumber Company, a corporation, and W. R. Wilkinson, trustee, as defendants, to recover judgment for claims held by sundry creditors of said Fandango Lumber Company previously assigned to plaintiff in the action. Pending the action and upon the complaint therein and the affidavit of the plaintiff, said W. R. Wilkinson was appointed receiver of the assets and property of the defendants. It appeared, also, that previous to the appointment of the receiver, the said Wilkinson had been made trustee by a trust deed made by the directors of the Fandango Lumber Company conveying its property in trust to Wilkinson for the benefit of the creditors of said corporation. This trust deed is not in the record. The order of appointment of Wilkinson as receiver recited that he was appointed "with the usual powers of receivers in such cases upon his filing a bond with the clerk of this court and executed to the state of California in the penal sum of ten thousand dollars, conditioned for the faithful performance and discharge of his duties in the usual form." Wilkinson executed a bond as required by the court as principal, and among the sureties on his bond were the defendants Fee, Lowell, Stephens, and Peterson.

The court found "that in the transactions between the said W. R. Wilkinson with the plaintiffs in this case as set forth in their complaint filed herein, including the trading of lumber belonging to the said Fandango Lumber Company for wagons, the said W. R. Wilkinson had no order or authority from the court for so doing, nor was he acting under any authority or direction of these defendants now in court, or any of them, or at their instance or upon their behalf, nor was he in doing any of said acts acting as receiver as aforesaid, but was acting wholly and entirely in his individual capacity and not otherwise."

Upon the claim made by plaintiffs that Wilkinson was acting in the capacity of agent for defendants, and hence that the latter are liable as principals, the court made the following finding: "That the said W. R. Wilkinson was not, when acting as receiver as aforesaid, in any way or manner the agent of these defendants now in court or of any of them, and was not their agent, nor was he acting under any authority or direction from them or any of them in the purchase of the said wagons from plaintiffs as set forth in the said complaint,

and had no authority to bind, nor did he bind, these said defendants in any way as agent for them, or otherwise in the purchase of said wagons or any of them."

As to the averments in the complaint that Wilkinson, as receiver, made representations to the plaintiffs that in the purchase of said wagons he was acting as such receiver and was making the purchases for the use and benefit of said Fandango Lumber Company and defendants as creditors thereof, the court finds as follows: "That any representations that were made by the said W. R. Wilkinson at the time of the purchase of the wagons from plaintiffs as set forth in the complaint were made by him without any authority from these said defendants, or any of them, and without their knowledge, and that no part or portion of said wagons, or any profit in any way that may have been derived therefrom by the said W. R. Wilkinson, was ever received or had by the said defendants now in court or any of them."

Appellants state in their brief that "respondents in this case are not sued because they were bondsmen of Wilkinson, neither are they sued for damages for malicious abuse of process, or malicious prosecution. The case was based and tried on the theory of agency, and according to the view of appellants, the facts fit that theory of the law."

Some question is raised as to the validity of Wilkinson's appointment as receiver, appellants claiming that it was void. Whatever view may be taken of this question, it is clear from the evidence that he was acting in that capacity apparently in good faith, and whatever he did was done under the claim of being receiver in the action. While appellants do not claim that the respondents other than Wilkinson were liable on their bond, they do claim, however, that because of the fact that they became sureties for Wilkinson and that he was acting for the benefit of the creditors of said Fandango Lumber Company, Wilkinson must be held to have acted for them and as their agent.

The finding of the court that Wilkinson made the purchases without any authority from the said respondents, or any of them, and without their knowledge, and that they received no benefit from said purchases, is fully supported by the evidence.

So far as we can discover from the record, Wilkinson was appointed receiver upon the advice of the attorney for all

the creditors, of whom respondents are but a part, and that these respondents became sureties for Wilkinson in good faith, believing that the appointment of a receiver was for the benefit and advantage of all the creditors; but in the conduct of Wilkinson as receiver, these respondents had nothing to do, and in no way, so far as the evidence discloses, constituted Wilkinson as their agent in the purchase of the wagons sold to him by plaintiffs. We are unable to perceive any ground upon which the said respondents can be held liable in this action.

We are of the opinion that the findings are supported by the evidence and that they are ample to support the judgment. Judgment is therefore affirmed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 1707. Third Appellate District.-October 16, 1917.] YOLO WATER AND POWER COMPANY (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA et al., Respondents.

WORK MEN'S COMPENSATION ACT-STATUS OF APPLICANT FINDING OF COMMISSION.-An award of the Industrial Accident Commission must be sustained if there be any evidence to support its finding that the applicant for compensation was an employee at the time of the accident.

ID.-FOREMAN OF WATER COMPANY-AUTHORITY TO HIRE MEN AND TEAMS-DRIVER OF FOREMAN'S OWN TEAM-RELATIONSHIP OF PARTIES.-A foreman of a water and power company employed at a per diem wage, with full authority to hire men and teams to assist him in his employer's work, is not, in a case where he furnishes his own team and hires a driver therefor, to be considered as an employer with reference to such driver, the latter receiving his wages from the company and the foreman being paid only for his team.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to annul an award of the Industrial Accident Commission.

The facts are stated in the opinion of the court.

Arthur C. Huston, and Theodore A. Bell, for Petitioner.

Christopher M. Bradley, Warren H. Pillsbury, and A. C. Murray, for Respondents.

BURNETT, J.-This case comes up on certiorari to review the finding of the Industrial Accident Commission to the effect that Pietro Supparto, at the time of his injury, was an employee of the petitioner. Petitioner claims that the evidence shows solely that Supparto was an employee of Wallace, and therefore the commission acted beyond its jurisdiction in awarding Supparto compensation against petitioner. If there be any evidence to support the finding of the commission its award must be sustained. (Western Indemnity Co. v. Pillsbury, 172 Cal. 807, [159 Pac. 721].)

W. C. Wallace was petitioner's foreman, employed at a wage of $5 a day. He had full authority to hire whomever he pleased to assist him in the company's work. It is admitted that men so employed were employees of the company, and were so recorded on the company's books, receiving $2.25 per day. But when a team and a man were hired a lump sum of $4.50 was paid, and the man's labor was not segregated upon the company's books, but it appears that the man always received $2.25 and $2.25 went for the team.

Very often Wallace furnished his own team, among others, used by the company, and sometimes employed one of the men on his own ranch to drive it. Wallace directed the performance of the work as foreman, and as far as indicated by the record, directed drivers to exactly the same extent as he did the undoubted employees working under him for petitioner. Supparto had always dealt with Wallace as foreman, had worked for petitioner under him innumerable times as a laborer, and had always been paid by check by petitioner directly, with the exception that upon one occasion a few days before his accident he had worked as a driver, for which he had not been paid at the time of his injury. On the day of the accident Supparto had applied as usual to Wallace for work, and Wallace had told him he could use him on the Central Canal. Thereupon Wallace, with Supparto, drove to the canal, and proceeded to unload hay, when the injury

occurred. Under these circumstances petitioner claims that the facts come squarely within the case of Western Indemnity Co. v. Pillsbury, supra, and that Supparto was an employee of Wallace, with whom the corporation contracted, so it is claimed, to furnish teams. The position of petitioner is that when Wallace employed a man merely, he was an employee, that when a team was furnished separately (as Wallace testified was done on at least one occasion) the driver was an employee, but when Wallace obtained a team and man together, then he stood in the position of a contractor to furnish teams for their work, though he still continued also in the capacity of foreman. The contention of petitioner seems to us very technical and unsubstantial.

There is abundant evidence to support the award, and the Western Indemnity case is clearly distinguishable. Supparto testifies that he intended to work as usual as an employee of the company and not of Wallace on the day of his injury, and Wallace in his verified answer and testimony declares that he intended to engage Supparto as an employee of the company. Wallace made no profit on Supparto's services as driver. Supparto was paid $2.25 per day for driving, which was petitioner's regular rate of pay for workmen, and Wallace retained $2.25 a day for his team.

In the Western Indemnity Company case it clearly appears that Stevens was engaged in a permanent business of "Teaming and Grading," and contracted to furnish teams and drivers for the work. In the present case Wallace was not by trade a contracting teamster, and the evidence is too vague and indefinite to warrant a finding that Wallace had contracted to furnish teams. The evidence as a whole indicates rather that Wallace regarded himself as foreman, and in that capacity employed men and teams. Wallace could not have sued petitioner for breach of contract for failing to accept teams tendered by him, nor could petitioner have sued Wallace for failure to furnish teams, because of this indefiniteness. Stevens did not act as foreman for Tittle, hiring and discharging his men, as did Wallace here, but worked under the foreman of the general contractor. Had Stevens been discharged, his teams must necessarily have been ruled off the work with him. But for aught that appears here, Wallace could have been discharged and yet the teams secured by him retained. There are other points upon which the cases