As I read the contract which is the basis of the controversy between the parties in this case, it provides for the rental of equipment and not for the transportation of property. If this is the correct construction of the instrument, then the petitioner is not subject to the commission’s rate fixing power, for the relationship created by it is primarily determinative of the question for decision.
The contract did not, as the commission found, call for the use of Entremont’s trucks for 500 hours each. The Department of Public Works was not bound to use his trucks for any length of time, for it expressly reserved the right to terminate the agreement “at any time. . . when the equipment is no longer needed” or “when state owned equipment is available”. The contract, therefore, was not one for a specific transportation service, but was merely to make extra equipment available for emergency service or whenever state-owned trucks were not available.
*303Several other factors strongly indicate that it was a rental agreement. The rate of compensation was measured solely by the period of time during which the trucks were used and did not depend upon the use to which the trucks were put during that period. Although Entremont undoubtedly had the right to employ truck drivers of his own choosing, he was bound to replace anyone who was unsatisfactory to the department. However, with respect to the direction of trucking operations during the performance of the work under the agreement, the evidence unequivocally shows that Entremont neither possessed nor attempted to exercise any right of control.
Use and control of the hired property is the chief characteristic of a rental agreement. (Civ. Code, secs. 1925, 1955.) To say, as the commission found, that the trucks were subject to Entremont’s control throughout the performance of the hauling and that the directions given to the operators by the foreman “were only such as a carrier would normally have received from one for whom he is transporting property” is in plain contradiction with the facts established at the hearing. The evidence introduced before the commission shows that the trucks were used in conjunction with those of the Department of Public Works for the purpose of clearing slides and filling washouts on the state highways during the winter season. In doing this work material was carried for distances varying from a few hundred feet to as much as eleven miles, depending upon the necessities of the occasion, and the operators of Entremont’s trucks took orders solely from the foreman in charge of the highway maintenance crew, who gave them instructions where to load and unload. In short, during the time the Department of Public Works used the petitioner’s equipment, they were a part of the fleet of trucks engaged in the repair work then being done, and no distinction was made between a privately owned unit and one belonging to the state.
It is true that the contract required Entremont to keep the trucks in repair and to pay for all supplies necessary for their operation and that it characterizes the operators-as the employees of Entremont. However, it is common business practice to lease construction machinery “including operation”, and such facts are in no way inconsistent with the theory of lease. In Stewart v. California Imp. Co., 131 Cal. *304125 [63 Pac. 177, 52 L. R. A. 205], the city of Oakland “hired the use of the street-roller outfit from the defendant company—to wit, the roller, engine, and the engineer to manage the same—for so much a day” and the court held that the “relation of master and servant existed between said defendant Conger, and not between the city of Oakland and defendant Conger”. (See, also, Billig v. Southern Pac. Co., 189 Cal. 477 [209 Pac. 241]; Lowell v. Harris, 24 Cal. App. (2d) 70 [74 Pac. (2d) 551].) Nor is the fact that under the contract Entremont assumed liability for damage or injury to other property or persons inconsistent with a lease. It was "competent for the parties to agree inter se upon the incidence of delictual responsibility and no doubt such a contract would be binding as between themselves.
Cases such as Department of Water & Power v. Industrial Acc. Com., 220 Cal. 638 [32 Pac. (2d) 354], and Independence Indemnity Co. v. Industrial Acc. Com., 203 Cal. 51 [262 Pac. 757], indicating that the department would be a “special employee” under the terms of the Workmen’s Compensation Act, are not in point. The term “special employee” is a statutory relationship created by that act and is sui generis.
The case of People v. Tedesco, 18 Cal. App. (2d) 667 [64 Pac. (2d) 966], lends full support to the conclusion that Entremont was not engaged in the transportation of property upon the highways within the meaning of the Highway Carriers’ Act. That case arose upon the sustaining of a demurrer to complaints brought by the state to recover penalties under the Highway Carriers’ Act. The complaints alleged that the defendants had engaged in the transportation of property by motor vehicles for compensation in violation of the lawfully established rates for such service. By other allegations of the complaint it appeared that the defendants had hired out trucks of a specified capacity “with operators” to the United States government. The court held that the complaints failed to show that the defendants were “highway carriers”.
Holmes v. Railroad Com., 197 Cal. 627 [242 Pac. 486], is not contrary to a conclusion that the Entremont contract is a rental agreement. In that case the facts show “leases” between the parties which were a mere subterfuge, because it was apparent on the face of the contracts that the rate payable to the truck owners was based upon the weight of the *305goods carried and not upon the period of time during which the truck was used. While the “rental” of each truck purported to be $19.50 per day, the court pointed out that “It is apparent from the other provisions of these ‘leases’ and from the manner in which they were performed by the parties that they are nothing more than contracts for the transportation of merchandise for compensation at the rate of thirty-two and one-half cents per hundred pounds, subject to a minimum charge of sixty-five cents per shipment.” On the other hand, the rate of compensation payable to Entremont under his contract with the department was based solely upon the element of time of use and was in no way dependent upon the weight of the materials carried. The contract did not define either the time involved for performance or the route or termini the trucks were to follow.
In my judgment, a consideration of all of these elements, together with the fact that the direction and control of the operators during performance was vested in the department, compels the conclusion that the contract was a lease.
I am, therefore, of the opinion that the order of the Railroad Commission should be annulled.
Houser, J., concurred.
Rehearing denied.