Burruss v. B. M. C. Logging Co., 3928.

• Decision Date: 26 March 1934
• Docket Number: No. 3928.,3928.
• Citation: 38 N.M. 254,31 P.2d 263
• Parties: BURRUSSv.B. M. C. LOGGING CO. et al.
• Court: New Mexico Supreme Court

38 N.M. 254

31 P.2d 263

BURRUSS

v.B. M. C. LOGGING CO. et al.

No. 3928.

Supreme Court of New Mexico.

March 26, 1934.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Suit under the Workmen's Compensation Act by Madge Burruss against the B. M. C. Logging Company and another for the death of E. C. Burruss. Judgment for claimant, and the employer and insurer appeal.

Affirmed, and cause remanded.

Claimant's objection to compensation award on employer's appeal could not be considered, where claimant took no appeal.

Donald M. Bushnell, of Albuquerque, for appellants.

Joseph Gill, of Albuquerque, for appellee.

WATSON, Chief Justice.

E. C. Burruss was accidentally killed while driving a truck loaded with logs. His widow recovered judgment under the Workmen's Compensation Act (Comp. St. 1929, c. 156), from which the claimed employer and the insurer have appealed.

The defense was that the deceased was not a workman within the meaning of the act. The first point relied on for reversal is that the court erred in concluding upon the findings that the deceased was a “*** person who has entered into the employment of or works under contract of service or apprenticeship, with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business.” Comp. St. 1929, § 156-112 (i).

Under definitions of the same import it is often a difficult question whether the injured person was an employee or a so-called “independent contractor.” Such is the question now to be determined upon the following findings made at the request of appellants:

“1. That Burruss' stipulated hauling for the BMC Logging Company (hereinafter called the company) was part of the latter's operations under a contract with the New Mexico Lumber and Timber Company, whereby the Logging Company was to cut timber for designated areas in the vicinity of Porter, Sandoval County, New Mexico, and to remove the same to within a designated distance of the tracks of a certain railroad in that vicinity.

“2. That by day labor the company cut the timber, ‘skidded’ it into convenient ‘loading’ or concentration points as its operations progressed, from whence it was hauled by various truckers, of whom Burruss was one, to the railroad.

“3. That Burruss had no written contract with the company, nor were the terms of his engagement-except his rate of compensation -stated orally, but the terms thereof rested upon the practices and usages of the company to which he acquiesced.

“4. That the only compensation to the truckers was a specified rate for each 1,000 timber feet of lumber actually hauled to the railroad for which they furnished the labor of driving, all the equipment-truck and trailer-and operated and maintained the same.

“5. That the company worked several loading points simultaneously, providing at each a loading crew of two men and a team of horses, and from time to time as its operations progressed, its woods boss directed the various truckers to specified loading points for their loads, respectively; several trucks to each point.

“6. That each truck was loaded by the crew and the trucker working together, taking the logs from the pile is they came.

“7. That the truckers could control the size of their loads.

“8. That there were at times in the company's operations a choice of routes and the trucker's had the right of selection.

“9. That the trucker had the right to say, in a given condition of weather, whether or not he would then haul.

“10. That the trucker could refrain or ‘lay off’ from work at any time he might choose.

“11. That the truckers were not required to work any specified hours.

“12. That the trucker had sole control of the operation of his truck on the road, and of its mechanical condition.

“13. That the trucker could substitute another driver for himself at will.

“14. That the assigning of the various truckers to respective loading points by the woods boss required to coordinate their work to that of the loading crews.”

And upon the following findings made at the request of the appellee:

“1. The deceased Burruss in hauling logs for the BMC Logging Company was under the direction of a boss or superintendent; there was no time limited in which he should haul a certain amount of logs; there was no specific area from which the deceased was to haul the logs; the employer BMC Logging Company retained the superintendency of the operations; the deceased was required to take the logs that were given to him and he was directed where to get them and where to deliver them; the logs were loaded on to the truck of the deceased by the employees employed by the BMC Logging Company.”

“5. That the deceased Burruss was hauling logs for the defendant BMC Logging Company at a definite price of $2.50 and $3.00 per thousand.

“6. That the defendant BMC Logging Company retained the right to employ and discharge the deceased at its will.”

The statute requiring a “contract of service or apprenticeship,” there can be little doubt that it is the field of master and servant, not that of employer and independent contractor, that the Workmen's Compensation Act has invaded. Annotation, 43 A. L. R. at pages 336 and 346. And, while there seems to be some difference of conclusion, we now see no reason for considering that the relation existing is to be tested differently in this class of cases than raider the common law or under other statutes involving the question. At least appellants contend, and appellee seems to acquiesce, that there is no difference.

If any proposition in connection with this question may be said to be settled, it is that there is no single nor sure criterion. Every case presents its own combination of facts, from which the resultant must be arrived at. A fact found controlling in one combination may have a minor importance in another. This appears not only from frequent statement, but as the general result of reading the confusing and perhaps conflicting opinions. The selected case series, American Law Reports, has offered many monographs bearing on the question, the “Comment Note,” 75 A. L R. 725, is so much an index of these as to make particular citation here unnecessary.

[1] The general distinction between the common-law servant and the statutory workman or employee on the one hand, and the independent contractor on the other, is too well understood to require comment. Often, in a particular case, characteristics of both relations are present. It is in such cases that the question becomes close.

The employee renders personal service. The independent contractor may or may not. In both cases, the employer exercises authority. Beyond doubt the character of such authority or control is the usual and generally accepted test. The result to be achieved by the independent contractor is controlled by the employer. But, when the control descends to the details or to the means and methods of performance, we have a servant or employee. This general test we find variously stated.

“An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed.” Annotation, 19 A. L. R. at page 235.

“Generally speaking, an independent contractor is one who exercises an independent employment and contracts to do a piece of work according to his own method, without being subject to the control of the employer, save as to the results of his work.” Honnold on Workmen's Compensation, § 66.

“It has been said that ‘the test of an independent contractor is that of rendering service in the course of independent occupation, following the employer's desire in results but not in means.”’ Schneider, Workmen's Compensation (2d Ed.) § 37.

“The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.” De Palma et al. v. Weinman et al., 15 N. M. 68, 103 P. 782, 785, 24 L. R. A. (N. S.) 423.

Mere suggestions do not count against the status or relation. Nor does that directing control essential to co-ordinate the several parts of a larger undertaking. This is conceded everywhere. And all agree, in statement if not in application, that it is the right to control, not the exercise of it, that furnishes the test.

In able and persuasive briefs and argument, counsel for appellants has made the most of the findings made at his instance. Giving them face value, there appears a large degree of independence of conduct not ordinarily enjoyed by employees. There also appears a large degree of business risk ashamed by the deceased and avoided by the employer. It is easy to consider that the deceased was in pursuit of profits, taking the chances of loss. The right to substitute a driver minimizes the element of personal service. We cannot better sum up the contention than in counsel's own language: “Is there any *** conceivable state of facts by which Burruss could have hauled these logs where he would be subjected to less control? Obviously not. Therefore, to hold him an employee, is to say that it is impossible for truckers to do such work independently.”

It is true that the special facts found disclose little of “superintendence” or of ...