Brewster v. McComb

• Decision Date: 16 July 1956
• Docket Number: No. 8354,8354
• Citation: 300 P.2d 507,78 Idaho 228
• Court: Idaho Supreme Court
• Parties: James Leroy BREWSTER, Claimant-Appellant, v. David N. McCOMB and Merle F. Brewster, co-partners, d/b/a B & B Contractors, Employer, and Liberty National Insurance Company, Surety, Defendants-Respondents.

Page 507

300 P.2d 507

78 Idaho 228

James Leroy BREWSTER, Claimant-Appellant, v. David N. McCOMB and Merle F. Brewster, co-partners, d/b/a B & B Contractors, Employer, and Liberty National Insurance Company, Surety, Defendants-Respondents.

No. 8354.

Supreme Court of Idaho.

July 16, 1956.

Carver, McClenahan & Greenfield, George A. Greenfield, Boise, for appellant.

Philip E. Dolan, Coeur d'Alene, for respondents.

KEETON, Justice.

Defendants David N. McComb and Merle F. Brewster are co-partners, doing business as B & B Contractors, engaged in hauling logs. Liberty National Insurance Company was at all times pertinent here the surety of the co-partnership covering liability of the partnership to its employees under the Workmen's Compensation Law.

James Leroy Brewster, unmarried, claimant and appellant, is the nineteen year old son of Merle F. Brewster, one of the partners. On May 10, 1955, while hauling logs with a truck owned by his father, claimant received a personal injury caused by an accident arising out of and in the course of his then employment. He made claim for compensation against B & B Contractors and its insurance carrier. The Industrial Accident Board, at the conclusion of a hearing, found that the partnership B & B Contractors was not claimant's direct employer at the time of the injury, but that his father was, in whose household claimant was dwelling both at the time of the employment and the injury; that such employment is not covered by the Workmen's Compensation Law and his injury is not compensable. Claimant appealed from an order denying compensation.

Claimant contends that the Board erred in finding that he was an employee of his father, and in failing to find that he was an employee of B & B Contractors at the time of the accident causing the injury; in concluding that employment by a partnership, of a member of the family of one of the partners residing with him, is not covered employment; and in finding that the partnership was merely the 'statutory' employer.

Claimant states the issue as follows:

'The issue in this case is principally concerned with the employment status of claimant at the time of his injury. Claimant asserts he was an employee of the B & B Contractors, a partnership.'

and further:

'The material question presented is whether claimant's employment was exempt from workmen's compensation coverage under 72-105(6), Idaho Code, because of his relationship to his father and the fact that he lived in the family home.'

The Workmen's Compensation Act, § 72-105a, I.C., 1951 S.L. Ch. 233, p. 470, exempts certain employment from the terms of the Act, and provides:

'None of the provisions of this act shall apply to the following employments, unless coverage thereof is elected as provided in section 72-105b:

* * *

* * *

'6. Employment of members of employer's family dwelling in his household.'

The parties admitted that claimant at the time of the injury was dwelling in the household of his father.

The pertinent facts are hereinafter stated. One Howard H. Altman, an independent contractor, had a contract to haul logs from land owned by one Harry Stuivenga. On May 5, 1955, Altman subcontracted with B & B Contractors to do a part of the hauling. Stuivenga authorized the lumber company receiving the logs to pay Altman for the work. Altman in turn paid B & B Contractors for the logs hauled under the subcontract. The circumstances under which claimant hauled the logs by use of a truck owned by his father, a member of the partnership, were described by the partner McComb, who testified:

'We had been shut down on account of the spring breakup, and Howard [meaning Altman] came by and contacted me one day * * * and asked if we could haul some logs for him * * *. One of our trucks wasn't quite ready to go. * * * and he came back the next day and said he wanted us to haul logs. He wanted to use both trucks, the one that belongs to B & B Contractors and one that belongs to Merle Brewster, [one of the partners] so we arranged to haul logs for a few days for him until we got going on our own job.'

The one truck owned by the partnership and the one privately owned by Merle F. Brewster, father of claimant, began the hauling of logs May 7, 1955. Claimant was hired by his father to drive his truck.

The Board found:

'Merle F. Brewster did not conduct all of his trucking and hauling operations as a partner in B & B Contractors. He owned as his own personal property a truck and operated it as 'a separate business.' The earnings from it are separate from the partnership business, as are also the expenses of the truck's operation, but as a matter of convenience the items are 'run through' the books of the B & B Contractors.'

This finding is supported by the testimony of defendant Brewster, who testified that the truck his son was driving when the accident occurred was a separate business and that its earnings were separate; the expenses of the truck's operation were also separate; that the truck had been used as a separate business of defendant Brewster on several other occasions. The Board found that the partner Brewster did most of his personal trucking as a gypo (a small contractor doing a part of a larger job) for B & B Contractors, but sometimes took jobs with others.

The partner McComb testified:

'Q. The truck James Brewster was driving was owned by Merle Brewster personally? A. Yes.

'Q. Did the proceeds from that truck go into B & B Contractors' account? A. Well, we have always, when we are on a logging job and this truck is working for us, we get the money and Merle Brewster is paid just the same as any of the other gypos on the job, and we have always handled his payroll because he isn't set up for social security and so on.

'Q. Actually the driving of the truck--James Brewster driving his father's truck, that was not actually for B & B Contractors, but he was working for Merle Brewster, isn't that right? A. Well, I had better not say that,--I don't know.

'Q. Would you have paid him out of B & B Contractor's funds when B & B didn't receive the profits from the truck?

* * * A. I don't know what the thing boils down to.'

further:

'A. We paid him [defendant Brewster] just the same as we paid any gypos that happened to be working for us. * * * We handled the payroll, so they would be covered for compensation.'

'Q. But Mr. Brewster didn't have to send his truck out if he didn't want to,-in other words, that was his own personal property and he would be paid personally for it, would he? A. In the end, yes, just the...