Bowser v. State Indus. Accident Comm.

• Decision Date: 24 October 1947
• Parties: BOWSER <I>v.</I> STATE INDUSTRIAL ACCIDENT COMMISSION
• Court: Oregon Supreme Court

182 Or. 42

185 P.2d 891

BOWSERv.

STATE INDUSTRIAL ACCIDENT COMMISSION

Supreme Court of Oregon.

Argued September 11, 1947.

Affirmed October 24, 1947.

Workmen's compensation — Supreme court — Finding of fact

1. Where sole issue presented by an appeal of the State Industrial Accident Commission is whether claimant was an employee or an independent contractor at time of accident, Supreme Court is limited by findings of fact of the trial court so long as they are supported by substantial evidence. O.C.L.A. § 102-1701 et seq.

Workmen's compensation — Purpose

2. The purpose of the workmen's compensation act is to require industry to carry the burden of personal injury suffered by employees arising out of and in course of their employment. O.C.L.A. § 102-1701.

Workmen's compensation — Construction

3. The workmen's compensation act should be liberally construed. O.C.L.A. §§ 102-1701, 102-1703.

Workmen's compensation — Control — Test — Employee — Independent contractor

4. Right of control rather than actual exercise of control is a primary test to be applied in determining wheither worker is an employee or an independent contractor and right to terminate relationship without incurring any liability is a secondary test. O.C.L.A. §§ 102-1701, 102-1703.

Workmen's compensation — Independent contractor — Employer-employee

5. The fact that a trucker is engaged in the performance of a specific piece of work is ordinarily strong evidence that he is an independent contractor, whereas if the contract does not call for performance of a specific piece of work, the relationship of employer and employee is indicated. O.C.L.A. §§ 102-1701, 102-1703.

Workmen's compensation — Independent contractor

6. The right of a trucker to employ helpers or assistants is strong evidence that he is an independent contractor but is not conclusive of such status. O.C.L.A. §§ 102-1701, 102-1703.

Workmen's compensation — Employee — Independent contractor

7. Log hauler who furnished his own truck and hauled logs for logging company at stated prices per thousand, but who was subject to control of logging company which could terminate relationship at will without liability, who was not required to do specific piece of work but only such as company could provide from day to day when it wanted to operate and who rendered services exclusively for the company was "employee" rather than an "independent contractor" at time of accident, for compensation purposes. O.C.L.A. §§ 102-1701, 102-1703.

See Words and Phrases, Permanent Edition, for all other definitions of "Employee" and "Independent Contractor".

Workmen's compensation — Attorney's fees

8. Additional attorney's fees in the sum of $250 for preparation and prosecution of appeal on behalf of compensation claimant as respondent would be allowed. Laws 1945, c. 303.

                  See 120 A.L.R. 1031
                  71 C.J., Workmen's Compensation Acts, § 208
                

In Banc.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

C.S. Emmons, Assistant Attorney General, of Salem (with George Neuner, Attorney General; T.W. Gillard, Assistant Attorney General; Roy K. Terry, Assistant Attorney General; all of Salem, on the brief), for appellant.

Harry George Jr., of Portland, for respondent.

Proceeding under the Workmen's Compensation Act by Ed C. Bowser opposed by the McDonough Logging Company. Judgment reversing an award of the State Industrial Accident Commission denying the claim, and the Accident Commission appeals.

AFFIRMED.

WINSLOW, J., (Pro Tempore).

This is an appeal from a judgment of the circuit court of the State of Oregon for Multnomah County determining that respondent, Ed C. Bowser, was an employee of McDonough Logging Company at the time he received certain injuries and that he is, therefore entitled to compensation under the provisions of the Workmen's Compensation Act, hereafter referred to as the Act.

Respondent was a log hauler furnishing his own truck and hauling logs for the company at stated prices per thousand. He was hauling for the company from their logging show in "God's Valley," on the north fork of the Nehalem River, to Warrenton, Wheeler and Mohler, depending upon the instructions of the company. The respondent's claim was rejected by the Commission upon the ground that he was an independent contractor rather than an employee. An appeal was taken, and the circuit court found that he was an employee. From that determination this appeal has been prosecuted.

The sole issue presented is: Was respondent an employee or an independent contractor at the time of the accident? The question is not an easy one to determine. The difficulty is not in stating the rule applicable, but in applying it. The general distinction between an employee on the one hand, and an independent contractor on the other, is well understood. Often, in a particular case, characteristics of both relationships are present. It is in such cases that the question becomes difficult. The record in this case presents many indicia of both such relationships.

1. However, our determination of the question is not to be based upon an original inquiry. We are limited by the findings of fact of the trial court so long as they are supported by substantial evidence. There is no contention that such findings are not adequately supported herein. Reference will be made to the findings in connection with our consideration of the different tests of such relationships.

Counsel for the Commission made this statement at page 7 of their brief:

"The appellant respectfully states to the Court that there is no such a thing as a controlling or final test in an independent contractor case, and further states to the Court that this or any other court can arrive at a decision and then find plenty of law to sustain and support that decision regardless of which decision is made."

That different results or conclusions have been arrived at from the same state of facts is only natural. It depends, to some degree, upon the purpose sought to be accomplished by the act being administered. This is pointed out by the Supreme Court of the United States in the recent case of United States v. Silk, ___ U.S. ___, 67 S.Ct. 1463, 91 L.Ed. 1335, decided June 16, 1947:

"The problem of differentiating between employee and an independent contractor or between an agent and an independent contractor has given difficulty through the years before social legislation multiplied its importance. When the matter arose in the administration of the National Labor Relations Act, we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents had not been reduced to such certainty that it could be said there was `some simple uniform and easily applicable test.' The word `employee,' we said, was not there used as a word of art, and its content in its context was a federal problem to be construed `in the light of the mischief to be corrected and the end to be attained.' We concluded that, since that end was the elimination of labor disputes and industrial strife, `employees' included workers who were such as a matter of economic reality. The aim of the Act was to remedy the inequality of bargaining power in controversies over wages, hours and working conditions. We rejected the test of the `technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants.' This is often referred to as power of control, whether exercised or not, over the manner of performing service to the industry. Restatement of the Law, Agency, § 220. We approved the statement of the National Labor Relations Board that `the primary consideration in the determination of the applicability of the statutory definition is whether effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act.'"

2. The purpose of the Act under consideration here is expressed in Section 102-1701, O.C.L.A., and succinctly stated in Hinkle v. State Industrial Accident Commission, 163 Or. 395, 399, 97 P. (2d) 725, as follows:

"* * * Its purpose is to require industry to carry burden of personal injuries suffered by employees arising out of and in the course of their employment."

3. That the Act should be liberally construed for the accomplishment of its purposes has so often been announced by this and other courts that citation thereto is unnecessary.

The Act provides:

"The term `employer', used in this act, shall be taken to mean any person, including receiver, administrator, executor or trustee, who shall contract for and secure the right to direct and control the services of any person, and the term `workman' shall be taken to mean any person who shall engage to furnish his or her services, subject to the direction and control of an employer.

"If any person engaged in a business and subject to this act as an employer, in the course of such business shall let a contract the principal purpose of which is the performance of labor, such labor to be performed by the person to whom the contract was let or by such person with the assistance of others, all workmen engaged in the performance of the contract shall be deemed workmen of the person letting the contract, if the person to whom the contract was let was not engaged in a separate business involving the occupation covered by the contract at the time of commencing the performance of the contract." O.C.L.A. § 102-1703.

The second paragraph of this statute is not applicable here because the "principal purpose" of this arrangement was not the "performance of labor" but rather the hauling of logs.

In Landberg v. State Industrial Accident Commission, 107 Or. 498, 502, 215 P. 594, this court said:

"The word `workman' as employed in the act was held in Anderson v. State Industrial Accident Com., ante, p. 304 (215 Pac. 582), to mean, as the act states, `"any person, male or female, who shall...