The respondent Department of Industrial Relations has filed a petition for a rehearing in which several contentions are stated at some length. Most of the points so made were at least suggested in the brief originally submitted to us and were considered by us before the decision was made, although some of them are not discussed in the opinion. A large part of this petition seems to be based on a misunderstanding of the language of our opinion, which has apparently led counsel to believe that we held the particular work in which Powell was engaged when he was hurt to be the personal business of Everett Isley. Following the example of the witnesses, we referred to the various acts of Everett Isley as being his acts, without specifically stating that they were done by him for Delsie L. Isley, but we fully understood that all of these acts were done by him as her agent, except in the single ease of the previous wrecking job to which he testified. We considered the case in the same aspect, except as to that one job, as if all the acts referred to had been done by Delsie L. Isley in person.
As to the casual nature of Powell’s employment, respondent complains that the opinion fails to distinguish between *583the employment and the work done under it. Perhaps the words “specific order” used in the opinion did not fully express our meaning; but we had the distinction referred to in mind and were of the opinion that the evidence showed a separate employment of Powell to work upon the barn, which was distinct from his employment to work in the trucking business.
Respondent also argues that this court was in error in its statement that Delsie It. Isley had no interest in the previous wrecking job done by Everett Isley. We have again carefully read the evidence quoted in support of this argument, but can find therein no reason for a different conclusion from that previously reached by us. However, even if we were wrong on that point, a single wrecking job done prior to the one in question would not be sufficient to show that Delsie L. Isley had engaged in the wrecking of buildings “with some degree of regularity,” and, hence, by the terms of the act, would not effect an extension of her business beyond its previous scope.
Respondent also claims that because the bam, having been paid for from the proceeds of Delsie L. Isley’s business, was her property, therefore any work done on it was incidental to and done in the course of that business. This is not the criterion established by the statute, and if it were adopted it would lead to extreme consequences. The testimony showed that all of the living expenses of the Isleys were paid out of the proceeds of this same business, and hence Delsie L. Isley was no doubt the owner of all food bought for their personal use; but if she had called Powell into her kitchen to peel potatoes for the family dinner and he had cut himself while so doing, it would hardly be contended that the cut was received by him in the course of her business, and if such contention were made it would receive scant attention. A number of cases are cited which hold that an employee may recover compensation for injuries received by him in doing work which, although not strictly within the scope of his particular employment, is done in the course of the employer’s business; but they are clearly not applicable here where the work was within the scope of Powell’s special employment, but was not done within the course of the employer’s business.
*584Another contention is that because the wrecking of the barn was done in order to put its materials into a haulable condition, such wrecking was incidental to the business of hauling. Several eases are cited where it was held that work which appeared to be somewhat out of the line of the employer’s business was nevertheless done in the course of that business. But in all of them it appeared that the work was done at the employer’s place of business and was to some extent connected with and arose out of his business operations. No case is cited which is at all similar in its facts to that now before us. This contention would lead to the conclusion that the business of every common carrier includes as an incident the manufacturing of the commodities hauled by such carrier, although such manufacturing had never been engaged in before the occasion which gave rise to the question.
Respondent also refers to the presumption declared by section 8, subdivision (b), of the act, and claims that this evidence on which a finding that Powell was an employee subject to the act may be based, even in the face of evidence showing the facts to be otherwise. The decisions are in conflict on the question whether a presumption may thus be used to support a finding; but under either rule the presumption referred to is of no avail to respondent. On this subject the act provides: “Any person rendering service for another, other than as an independent contractor, or as expressly excluded herein, is presumed to be an employee within the meaning of this act.” Hence when it appears, as it does in this case, that the person rendering service is expressly excluded by the act from its scope, there is no presumption as to him.
Respondent also claims that the court has exceeded its powers by weighing the evidence. If by weighing the evidence is meant its examination for the purpose of determining which of two or more conflicting statements or inferences from the evidence should be accepted as the basis for a finding, we agree that this court has no power to perform that function in this ease. But it does have power to examine the evidence for the purpose of ascertaining whether, on any reasonable view that may be taken of it, accepting only the statements and inferences most favorable to the findings in case of conflict or uncertainty, it will *585support the findings of .the Industrial Accident Commission as to jurisdictional facts essential to its award, and to set the award aside if no such support for it is found. We think we have gone no further in this case.
A rehearing is denied.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 2, 1928.