Burnett v. Roberts

• Decision Date: 10 February 1942
• Docket Number: 2204
• Citation: 57 Wyo. 511,121 P.2d 896
• Parties: BURNETT v. ROBERTS
• Court: Wyoming Supreme Court

121 P.2d 896

57 Wyo. 511

BURNETT v. ROBERTS

No. 2204

Supreme Court of Wyoming

February 10, 1942

APPEAL from the District Court, Crook County; HARRY P. ILSLEY Judge.

Proceeding under the Workmen's Compensation Law in the matter of the claim of Charles D. Burnett, employee, opposed by Mason Roberts, alleged employer. From an order awarding compensation, the alleged employer appeals.

Order of award reversed.

For the appellant, there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne and Raymond & Guthrie of Newcastle, Wyoming, and oral argument by Mr. Kline.

The finding of the trial court that respondent was an employee of appellant is not sustained by the evidence and is contrary to law. Fox Park Timber Co. v. Baker, 53 Wyo. 467; Schneider, Workmen's Compensation Law, Volume 1, 2d Ed p. 284; 71 C. J. 446-7; 75 A. L. R. 724; Industrial Commission v. Laird (Ohio) 186 N.E. 718; Rodgers v City of Hammond (La.) 178 So. 733. Respondent employed and paid his own assistants, owned his own equipment, furnished his own materials and supplies and controlled time within which work was to be performed, all being factors recognized by the courts in testing respondent's relation to appellant. Another important factor is that respondent borrowed money to finance his operations. We refer the court to the discussion in 71 C. J. 445; annotations in 19 A. L. R. 1168 to 1361; 75 A. L. R. 725; 120 A. L. R. 725; 120 A. L. R. 1031; Lindbloom v. Department of Labor and Industries, 91 P.2d 1001; Hubbard v. Dept. of Labor and Industries (Wash.) 88 P.2d 423; Eberly v. Sanders Lumber Company (Mich.) 276 N.W. 462; Grose v. Kratzer Furnace Co. (Mich.) 274 N.W. 748; Lowe v. Chicago Lumber Company (Nebr.) 283 N.W. 841; Holden v. Beebe Fuel Company (Ohio) 21 N.E.2d 874; Whitney v. Motors Company (Colo.) 102 P.2d 743; Keefer v. Boyd & Whipple, 11 N.Y.S. (2d) 1011; Nelson Bros. & Co. v. Industrial Commission (Ill.) 161 N.E. 113; Shannon v. Western Indemnity Co. (Ky.) 257 S.W. 522; Comm. v. McAdow, 184 N.E. 759. One party may stand in both the relation of employee and contractor to another party, and if injured while working other than as an employee, he cannot recover. Timber Company v. Baker, supra; Clough v. Malley's Estate, 126 Conn. 379, 11 A.2d 398; Wright v. Wilkins (Ky.) 300 S.W. 342. The State Compensation Department desires a definite interpretation of the law as to what is necessary to constitute an independent contractor.

For the respondent there was a brief by Otis Reynolds of Sundance and Preston T. McAvoy of Newcastle, and oral argument by Mr. McAvoy.

The object of the Workmen's Compensation Law is to afford relief to those who work with their hands and suffer injuries in the line of their duties. An employee is one who receives salary or wages or other compensation from another. Bowne v. Bowne, 116 N.E. 364. The term "workman" is defined by the statute. Sec. 124-106, R. S.; Hanning v. Whalen, 20 N.Y.S. (2d) 364; 71 C. J. 381; Timber Company v. Baker, 53 Wyo. 485. The right to hire or discharge is not a determinative one. 71 C. J. 424. The employment must be identified with the usual operations of the employer. 71 C. J. 441; Cont. Cas. Co. v. Haynie (Ga.) 181 S.E. 126; Hubbard v. Department of Labor and Industries (Wash.) 88 P.2d 423. The most frequently cited test is whether or not the employee was within the direction, control, supervision and orders of the employer. Commission v. Mathews (Wyo.) 111 P.2d 111; 71 C. J. 424. The authorities afford a reasonably clear definition of independent contractors. 71 C. J. 506; Reece v. Rhoades, 25 Wyo. 91; Hoge v. George, 27 Wyo. 423; Dunn v. Gilbert, 36 Wyo. 249; Binning v. Miller, 55 Wyo. 478. The authorities cited by appellant are clearly distinguishable from the present case upon the facts.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

Charles D. Burnett was injured March 6, 1940, while engaged in work incidental to the manufacture of grain-doors, and claimed compensation under the Workmen's Compensation Law, alleging that the injury was sustained while he was a workman in the employment of Mason Roberts. He was allowed compensation for total, permanent disability caused by the injury. On appeal by the alleged employer, the sole question is whether there is substantial evidence to support a finding that the relation of the parties at the time of the injury was that of employer and employee.

Both Burnett and Roberts are experienced timber workers, and were, at the time of the injury, working on a tract of wooded land in Crook County. The land was owned by C. A. Ward who by contract made in November, 1938, gave Burnett license to occupy the land and take therefrom the merchantable timber for which Burnett agreed to pay to Ward stumpage at the rate of $ 2.50 per thousand feet.

Operations under this contract were carried on by Burnett until about October 1, 1939. He had on the land three mills: the saw mill where logs were sawed into lumber; the planing mill where some of the lumber was planed, and the grain-door mill where some of the lumber was used in the making of grain-doors. (A grain-door is a close-fitting movable door used on the inside of a railroad box-car to close the lower part of the door-opening and prevent leakage when the car is loaded with grain in bulk.) The three mills were separate, though the saw mill and the grain-door mill were only 75 or 80 feet apart.

About October 1, 1939, Burnett sold the saw mill to Roberts, and made a deal whereby, in the language of Burnett, he "turned the timber" to Roberts who agreed to pay Burnett $ 3.50 per thousand feet, $ 1.00 per thousand more than Burnett had to pay Ward. Thereafter, Roberts did the logging and ran the saw mill. Burnett retained and continued to operate the planing mill and the grain-door mill. Roberts cut the logs into board lumber and railroad ties. He sold some of the board lumber to Burnett who resold it after he had planed it at his planing mill. The rest of the board lumber, except a small part that was delivered to Burnett for use in making grain-doors as presently explained, was hauled in trucks from the saw mill to nearby towns for sale by Roberts. The ties and grain-doors were for sale to a railroad company whose line runs through the town of Moorcroft. There is no material conflict in the evidence in regard to the terms of the contract for the manufacture of the grain doors, and we state the facts substantially as related by Burnett himself.

It was the practice of the railroad company to order grain-doors from the person who had the tie contract. They were ordered from Burnett while he was in charge of all operations on the land, and on October 1, 1939, when Roberts took over the logging and saw mill operations, Burnett had on hand a considerable number of doors that had not been delivered. It was evidently known or taken for granted that future orders for doors would come to Roberts, who had the tie contract. Burnett had retained the grain-door mill including machinery, a cross-cut saw, a trimmer saw and a gasoline engine. Burnett also had a truck suitable for hauling the doors to the railroad. After some preliminary conversations, an oral contract for the manufacture and delivery of the doors was made in the forepart of October, 1939. On this subject Burnett testified as follows:

"We talked it over outside a day or two before that and then we was in Mr. Robert's house when I told him just what I would do about making them. [The deal was that] he furnished the lumber free of charge to me, put it down next to the trimmer saw and I was to furnish the nails and nail the doors and deliver them into Moorcroft, and when they were shipped, he was to pay the loaders and I was to get half of what they brought." At another place in his testimony he states the terms of the contract thus: "Mr. Roberts was supposed to put the lumber down where we could get at it at the cut-off saw or trimmer saw. I was to manufacture the doors, furnish the nails and haul them into Moorcroft whenever he got a contract and whenever he got an order for them. [I was to receive] fifty percent of what they came to after the loading was taken out."

The express terms of the contract did not fix the number nor describe the kind of grain-doors to be manufactured by Burnett. Those were details dependent on the orders from the railroad company. It was evidently understood that there would be enough doors to fill orders received from the railroad company while lumbering operations were being carried on by the parties at the place where their mills were then located. Later, at a time not definitely shown, it became known that the required number was about 4000. Burnett had been making grain-doors for some time before, and it was of course contemplated that, in continuing that work under his contract with Roberts, he would make doors to conform with specifications, express or implied, in the orders. The orders were also to control the times and place of delivery. At Moorcroft "there was just one place to take them."

March 6, 1940, when Burnett was injured, he was alone in the grain-door mill oiling machinery. The injury was a severe cut in the head by a buzz saw, one of the machines used in making grain-doors. Before his injury he manufactured about 3000 doors and piled them at a place selected by him. He did most of the work himself in his own mill using machinery that he owned and kept in repair. There was no evidence that Roberts ever exercised any control over the details of the work or of Burnett's physical conduct. Helpers were employed by Burnett and worked for him without direction or...