Brazeale v. State Indus. Acc. Commission

• Decision Date: 21 February 1951
• Citation: 227 P.2d 804,190 Or. 565
• Parties: BRAZEALE v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

Page 804

227 P.2d 804

190 Or. 565

BRAZEALE v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon.

Argued and Submitted Jan. 10, 1951.

Decided Feb. 21, 1951.

William A. Babcock, Jr., Portland (Harry George, Jr., Portland, on the brief), for appellant.

Ray H. Lafky, Asst. Atty. Gen. (George Neuner, Atty. Gen. and T. Walter Gillard and Roy K. Terry, Assts. Atty. Gen., on the brief), for respondent.

Before BRAND, C. J., and HAY, ROSSMAN, LATOURETTE and TOOZE, JJ.

HAY, Justice.

This is a workmen's compensation law case. The facts were stipulated, as follows: Donald M. Shelley was the owner of three logging trucks and was engaged in the business of contract log hauling. He himself drove one of the trucks, and he employed drivers for the other two. In July, 1948, Shelley contracted with a partnership, which conducted a lumbering operation under the assumed name of Lucky Four Logging Company, to haul for it exclusively, to the extent of its requirements, for a consideration of an agreed price per thousand board feet of logs hauled. On November 5, 1948, Shelley employed George Robert Brazeale to drive one of his trucks on the Lucky Four job. Brazeale continued in that work thereafter, except for an occasional day or two when Lucky Four did not need trucks and Shelley could find other work for them, until the first week of December, 1948, when, because of winter conditions, the hauling was suspended. While on the Lucky Four job, Brazeale and the driver of Shelley's other truck were carried on the Lucky Four payroll, and Lucky Four contributed to the industrial accident fund for such drivers. Lucky Four also paid on account of said drivers such payroll deductions as are required by law in respect of employees, including federal social security, state unemployment, and industrial accident contributions. During the time that the drivers were hauling for Lucky Four, they were considered to be its employees. Shelley, however, had an agreement with Brazeale that he would pay him twenty per cent of the amount that he, Shelley, should receive from Lucky Four for logs hauled by the truck driven by Brazeale, less wages paid Brazeale by Lucky Four and payroll deductions made by Lucky Four for his account. The drivers were required by Shelley to see that their trucks were maintained in proper repair and to keep them greased, gassed, washed and oiled. Minor repair work and servicing were performed by the drivers at their own convenience, at times when they were not engaged in hauling, and were considered to be part of the duties of their employment by Shelley, compensated for by the twenty per cent payment of the sums earned by their respective trucks, as above mentioned.

While working for Lucky Four, the drivers were under its control and direction in practically the identical particulars which were considered to be evidence of an employer-employee relationship in Bowser v. State Industrial Accident Commission, 182 Or. 42, 185 P.2d 891. Shelley, however, retained the right to discharge them at will, while Lucky Four could secure their discharge only by complaining to Shelley that their work was not satisfactory. The log hauling was an essential part of the Lucky Four logging operation.

It was customary for the drivers, with Shelley's knowledge and consent, to drive their trucks to their own homes at nights and on week-ends, when it was convenient to do so. They resided at Crabtree, Oregon, and customarily did their maintenance work there.

When Lucky Four shut down in December, 1948, Shelley was informed that the partnership wanted him to resume log hauling as soon as it was able to resume logging. He was instructed to hold his trucks in readiness to go back to work. Lucky Four had a collective bargaining agreement with the Sweet Home local of the International Wood-Workers of America, which agreement covered Shelley's truck drivers as well as other Lucky Four employees. Under that agreement, the truck drivers had certain seniority rights, by virtue of which, in the event of a shutdown, they were to be laid off last, and, on resumption of work, called back first.

Shelley and his drivers were idle for about three months after the December lay-off. In the latter part of February, 1949, two of the trucks, one of which was driven by George Brazeale, hauled logs for Melvin Shelley, a brother of Donald Shelley's, under an arrangement between the Shelleys. Melvin Shelley was a timber operator who had rejected the Workmen's Compensation Act. He carried group accident insurance for his regular employees. He did not consider Shelley's drivers as his employees, however, and did not carry them on his payroll. How they were paid while on that job does not appear.

Lucky Four resumed logging operations about March 7, 1949. During the work week of March 7-11, only one truck was required by it, which truck was furnished and driven by Shelley. Meantime, Brazeale and the other driver drove for Melvin Shelley, with the understanding that they would resume work for Lucky Four as soon as their trucks were needed. On March 11, Melvin Shelley's operation shut down, and thereupon Donald Shelley's drivers drove their trucks to their homes. That evening, Donald Shelley was informed by Lucky Four that probably two trucks would be needed on the morning of March 14, and that he would be advised definitely in that regard on Saturday night, March 12. Shelley passed this information on to Brazeale and the other driver. As it happened, on March 14, 1949, and for the remainder of that week, Lucky Four did in fact need and use three trucks. Shelley had given the drivers orders to have the trucks ready on Monday morning, March 14, to go work at Lucky Four, or where-ever else directed. On Saturday, March 12, the drivers proceeded to service their trucks, helping each other in the work. The work included greasing and washing, tightening bolts, etc. The trailers of logging trucks are carried upon the truck bodies when the trucks are not carrying logs, and, in order to service the trucks and trailers, it is necessary to unload the trailers. After the other driver's truck and trailer had been serviced, he attempted, with Brazeale's assistance, to reload the trailer onto the truck. In this work they used power driven hoisting equipment belonging to a sawmill outfit at Crabtree, with which neither Shelley nor Lucky Four had any connection. They had used this equipment previously for the same purpose, with Shelley's knowledge but without the knowledge of Lucky Four. They did not have express permission from the sawmill people to use its equipment, but this was the only loading equipment available at Crabtree on that day. To load the trailer on the truck, using this equipment, required the work of two men, one to operate the machinery, and the other to hook the lines to the trailer and 'spot' the trailer onto the truck. While they were so engaged, the hoisting equipment jammed, causing a part of it to fall on Brazeale, killing him instantly.

Plaintiff herein is administrator of the estate of said decedent. In due course after his death, she filed with the defendant State Industrial Accident Commission her claim for compensation for his death, under the Workmen's Compensation Act, O.C.L.A. § 102-1701 et seq. On May 3, 1949, the defendant made its final order rejecting such claim, on the ground that, on the date on which he sustained his fatal injury, decedent was not employed subject to the provisions of the Act. Plaintiff petitioned for a rehearing, which was denied, and plaintiff appealed to the circuit court for Multnomah County. Issue was joined upon plaintiff's supplemental complaint. Change of venue to the circuit for Linn County was ordered. The facts, as we have said, were stipulated, and in due course the trial judge made findings of fact to the effect that decedent George Robert Brazeale was not, at the time of his death, an employee of Lucky Four Logging Company, and that the work in which he was engaged at the time of his fatal accident was for his own benefit and that of 'his follow servant,' Donald Shelley. Based upon such findings, the court concluded that the plaintiff should take nothing by her action, and accordingly entered judgment of dismissal. Plaintiff has appealed from such judgment.

The findings of the court upon the stipulated facts have the effect of a verdict. § 5-503, O.C.L.A. If such findings are supported by substantial evidence, they are conclusive upon this court. Bowser v. State Industrial Accident Commission, supra, 182 Or. 42, 44, 185 P.2d 891.

Appellant suggests that the appeal involves the following questions: (1) Was decedent in the service of either Donald M. Shelley or Lucky Four Logging Company at the time of the accident? (2) Was Shelley an employer who was subject to the Workmen's Compensation Act? (3) Did the accident arise out of and in the course of employment of decedent by either Donald M. Shelley or the Lucky Four Logging Company? We add that appellant has also argued that decedent was an employee of both Lucky Four and Shelley.

Error is assigned upon the court's finding that decedent received no compensation from Shelley or anyone for servicing and maintaining the trucks, and its conclusion that he was not in the employ of Shelley in any of the operations described in the agreed statement of facts.

Respondent concedes, in effect, that decedent entered upon his work by virtue of a contract with Shelley; that both he and Shelley had the right to terminate the relationship at will; and that, at any particular time involved herein, decedent was an employee of the particular logging operator to whose operation he and his truck had been detailed by Shelley. Respondent, however, does not concede that the record shows that decedent was paid compensation by Shelley.

Shelley, as stated, was a contracting log hauler, hiring his trucks and drivers to lumbermen for a consideration. Even while...