After trial before the court without a jury in consolidated actions to recover unemployment insurance taxes paid under protest, plaintiffs appeal from a judgment for defendant.

The facts in both cases are similar. Plaintiff Manchester Avenue Company owns and operates a golf course known as the Inglewood Country Club. Plaintiff Virginia Country Club owns and operates a golf course.

Some of the golfers on plaintiffs’ courses engage caddies to carry their clubs and help look for golf balls which the players might hit into the rough. At the two courses a number of caddies are available for players who desire their services. The caddies are not told when to report but come when they want to work. The caddies are paid by the players, not by plaintiffs. There is no restriction on the amount that can be paid, except that at the Inglewood course a minimum fee has been established by the club for the protection of the caddies. Neither club pays a caddie who comes in search of work but is not hired by a player.

Each player has the right to select his own caddie or to carry his own clubs if he so desires. In fact, most players carry their own clubs on golf carts. If a player desires a caddie but expresses no choice, a caddie is assigned to him on the basis of “first-come first-out” (but at the Virginia Club it is the practice to give preference to regular caddies). A caddie has the right to refuse to go with any player.

Each club maintains facilities where the caddies wait until they are called. They are required to register when they arrive and are not allowed on the practice or playing area of the course while not caddying. They are limited at such times to the area reserved for them. Caddies are not allowed to solicit employment from the players, and swearing, gambling, and the use of intoxicating liquors are prohibited. The golf pro or caddie master has the power to enforce these regulations by dismissing a caddie or by keeping him waiting while others go out.

In 1952 assessments were levied against plaintiffs for unemployment insurance taxes on the amounts the caddies had received from the players. After exhausting their administrative remedies, plaintiffs paid the taxes under protest and filed the present suits to recover the funds paid.

On the basis of the foregoing facts, the trial court found that it was not true that plaintiffs did not direct and control the manner and means of the performance of the caddies’ services and made its conclusions of law to the effect that the caddies were employees of plaintiffs and that plaintiffs were therefore not entitled to recover.

Question: Do the provisions of the Unemployment Insurance Code apply to services performed in caddying or carrying a golf player’s clubs by an individual who was not in the employ of the golf club or association?

No. The following is a brief history of the unemployment insurance tax as it relates to caddies:

In view of the foregoing legislative history, it is clear that the Legislature did not intend to include services performed by an individual as a golf caddie, and paid for solely by a member of a golf club, within the meaning of the word “employment,” as used in the Unemployment Insurance Code.

The evidence in the present cases discloses that there is some control over the caddies by either the caddie master at the Virginia Country Club or the starter at the Inglewood course while the caddies are on and around the clubs’ premises awaiting an opportunity to caddie. However, the evidence further shows that after a caddie has been engaged by a player, the player has exclusive control over the details of his work, and no one connected with plaintiffs has any control over the services rendered by the caddie at any time. The control exercised by plaintiffs over the caddies falls under the principle of law known as “control of the premises” and is to be distinguished from the control which the golf-playing member has over the caddie.

If rules are made only for the general control of conduct of a person while on the premises of another, mere conformity to such rules does not indicate or establish that the persons involved are employees of the person making the rules.

In the Restatement of the Law of Agency (1933), section 220, page 489, Comment h, it is stated: “If . . . rules are made only for the general policing of the premises . . . mere conformity to such regulations does not indicate that the workmen are servants of the person making the rules.”

The relationship between plaintiffs and the caddies was similar, if not in fact identical, to the relationship between a union hiring hall and the union members. A union member looking for work goes to the hiring hall and is assigned to a job, but no one seriously contends that the union is the employer.

In the case of both plaintiffs, persons came looking for an opportunity to caddie. At the Inglewood course the caddies were assigned on a first-come first-out basis. They were not given any particular preference except when a player desired a special caddie, in which case he would be called regardless of whether he was next on the list or not. Likewise, the caddie could refuse to go with the player if he did not care to go.

At the Virginia course practically the same policy was followed except that there were a few regulars who, because they were generally there first, were given the opportunity of going out first. The first-come first-out system was employed to avoid preferments or misunderstandings among the caddies as to the order in which they were to be called. It tended toward harmony and decorum, which are essential in the maintenance of an efficient golf course with several hundred players.

The primary function of the caddie was to carry the golf player’s clubs from the beginning to the finish of the player’s game. All the duties performed by the caddie while pursuing that function were at the sole and exclusive direction of the player. The player alone told his caddie what he wanted him to do while carrying the clubs. No one connected with plaintiffs had a right, or ever attempted, to interfere in any way after the game started. This placed the caddie under the control of the player as to the “means and method of performing the work,” and not under the control of plaintiffs.

The evidence likewise fails to reveal any specific contract of hire between plaintiffs and the caddies, either express or implied. The mere fact that a person is allowed access to a golf course solely by sufferance of the club, so that he may become a caddie, does not create an employer-employee relationship. Plaintiffs merely granted permission to persons to come to the clubs and offer their services to players. They were not hired by the clubs but merely permitted to avail themselves of the facilities provided by the clubs. They were not paid by the clubs out of club funds, but entirely by cash, either directly or indirectly, by the players.

An examination of the record reveals that there was a total absence of any evidence that anyone connected with either plaintiff did, or had the right to do, anything toward directing the control of the means and manner of performing the task of caddying. Therefore, the court’s finding that plaintiffs did exercise such control is unsupported by any evidence, and its conclusions of law that the caddies were employees of plaintiffs and that plaintiffs were not entitled to recover are erroneous.

Claremont Country Club v. Industrial Acc. Com., 174 Cal. 395 [ 163 P. 209 , L.R.A. 1918F 177 ], relied on by defendant, is not applicable to the present ease for two reasons:

It thus appears that the reasoning followed by the court in the Claremont case is not applicable to the facts in the present cases.

Furthermore, in the Claremont case the court felt that the club could direct the caddies to do some work while not caddying. No such relationship existed with the caddies in the present eases. There is no evidence whatever that the caddies were required to perform any services for the clubs while awaiting a chance to go out with a player. The evidence is also without conflict that the caddies were not subject to direction or control by plaintiffs, insofar as any duty or service to the golf-playing member was concerned, while actually caddying.

Unlike a waiter in a restaurant or a house servant (these being the illustrations used by the court in the Claremont ease), the caddies in the instant eases could come and go as they pleased. They were not paid for coming or waiting. If they did not get a call to go out with a player, they received nothing. On the other hand, a servant or waiter is paid during the time he is on duty even if he is not serving a guest or patron.

In addition, a guest or patron cannot discharge a servant or waiter. This can be done only by the employer. In the present cases, a caddie could be relieved or discharged by a player, but not by either of the plaintiffs, at any time the player desired from the beginning to the finish of his game.

The judgment is reversed.

Gibson, C. J., Shenk, J., Carter, J., Traynor, J., Sehauer, J., and Spence, J., concurred.