Butts v. State Indus. Acc. Commission

• Decision Date: 19 December 1951
• Citation: 239 P.2d 238,193 Or. 417
• Parties: BUTTS v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

Page 238

239 P.2d 238

193 Or. 417

BUTTS v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon.

Dec. 19, 1951.

Glen McCarty, of Portland, argued the cause and filed a brief for appellant.

Ray H. Lafky, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was George Neuner, Atty. Gen., of Salem.

Before BRAND, C. J., and ROSSMAN, LUSK, WARNER and TOOZE, JJ.

BRAND, Chief Justice.

The plaintiff is the widow of David A. Butts and brings this action against the State Industrial Accident Commission for the benefit of herself and minor children. She alleges that Butts was an employee of Hayden Laurance and Benjamin Melton, operating under the assumed name of South Deer Creek Lumber Company, hereinafter called the 'Lumber Company.' She alleges that the Lumber Company and Butts were subject to the provisions of the Workmen's Compensation Act, O.C.L.A. § 102-1701 et seq.; that in the course of such alleged employment he was operating a caterpillar tractor for the purpose of skidding logs and that the tractor overturned and Butts was killed. The answer alleges that: '* * * David A. Butts, the deceased, was engaged in the business of logging at the time he commenced performance of his contract with Hayden Laurance and Benjamin Melton; that said David A. Butts was performing a definite contract to yard all the logs from a definite tract without supervision or control as to means or manner thereof; and that David A. Butts in the performance of such contract was an independent contractor.'

The reply is a general denial. By stipulation the action was tried by the court without a jury. It was further stipulated that the only issue before the trial court was whether plaintiff's husband was an employee or an independent contractor. The court found that Butts was an independent contractor and rendered judgment for the defendant. In her appeal plaintiff presents a single assignment of error. It reads as follows: 'The court erred in its findings that the decedent was an independent contractor and not an employee within the meaning of the Workmen's Compensation Act, because the evidence does not support the finding, and in entering its judgment of dismissal of appellant's complaint with prejudice.'

When sitting without a jury, the findings of the court upon the facts 'shall be deemed a verdict * * *.' O.C.L.A. § 5-503. Since the adoption of constitution amended Article VII, section 3, we have been without power to set aside a verdict or the findings of fact of a trial court merely because the evidence is 'insufficient * * * to support the verdict' as that phrase was used by this court prior to the adoption of the amendment. The rule stated in Multnomah County v. Willamette Towing Co., 49 Or. 204, 89 P. 389, 393, upon this issue is no longer the law. While we are not strictly required to do so, we will treat appellant's assignment of error as an assertion that there was no substantial evidence supporting the findings of the trial court. Our sole duty in this case is to determine if there was any such evidence.

In Bowser v. State Industrial Accident Comm., 182 Or. 42, 185 P.2d 891, 892, the sole question presented was whether the injured person was an employee of an independent contractor at the time of the accident. This court said: '* * * 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. * * *' And see Stout v. State Industrial Accident Comm., 172 Or. 346, 141 P.2d 972.

Under the statute, the term 'workman' means 'any person who shall engage to furnish his or her services, subject to the direction and control of an employer.' O.C.L.A. § 102-1703. If compensation is to be had under the provisions of the Workmen's Compensation Act, it is incumbent upon the claimant to show that the injured person was a workman employed by an employer who was subject to the act, O.C.L.A. § 102-1728, and that while so employed he sustained personal injury by accident rising out of his employment. O.C.L.A. § 102-1752. The status of the injured person as a 'workman' is ordinarily a question of fact for the jury. Carson v. State Industrial Accident Comm., 152 Or. 455, 54 P.2d 109. It is generally held that: '* * * The question whether an injured workman occupies the status of employee, so as to bring him within the coverage of the statute, is ordinarily one of fact, but may become a matter of law where the indicia and elements bearing on the question are sufficiently clear and positive * * *' 58 Am.Jur. 872, Workmen's Compensation, § 461. Moore v. Clarke, 171 Md. 39, 187 A. 887, 107 A.L.R. 924.

The trial court made the following findings of fact from which it concluded as a matter of law that the deceased was an independent contractor:

'That on July 20, 1949, one David A. Butts sustained accidental injuries while operating a caterpillar tractor he owned with which he was 'skidding' logs. The operation of the tractor was pursuant to an oral contract with Hayden Laurance and Benjamin Melton doing business as South Deer Creek Lumber Company. David A. Butts agreed to move all logs from two 'landings' about a quarter of a mile apart on a certain tract of timber with compensation set at $4.00 per thousand board feet. The only exception with regard to the agreement to move all of the logs was that a few logs were to be trucked out by other parties. Mr. Butts operated without restriction as to hours of labor, employment of assistants or substitutes and without direction or control as to manner or method of performing the work except as to result. Mr. Butts immediately prior to this contract had logged some of his own timber in which connection Hayden Laurence and Benjamin Melton contracted the log hauling. There was no restriction in the oral contract Mr. Butts was performing at the time of his death which would prevent operation of the caterpillar for others.

'There was nothing in the contract with respect to the right of either party to terminate the contract and though the testimony of Hayden Laurance is to the effect in his opinion that each party had that right, the fact that one price was set for skidding logs from two landings outweighs this personal opinion. In other words, when Mr. Butts started skidding from the second landing each round trip would be a half mile longer and therefore a more costly operation. Cessation of operations after performing the most profitable part would certainly have given rise to a dispute. The facts indicate that there was not a right for either party to terminate at will.'

We will now consider whether there was substantial evidence tending to support the findings of the trial court. The relationship between Butts and the Lumber Company was the outgrowth of an oral contract of July 1949. The testimony as to the exact terms of the agreement leaves much to be desired. It comes from the witness Laurance who was one of the partners in the Lumber Company. It is in many respects inconclusive and in some respects contradictory. In part it consists of specific statements concerning the agreement and in part of statements by the witness as to his feeling concerning his rights under the agreement. It was therefore peculiarly the function of the trier of the facts to determine the specific terms of the contract. In weighing the testimony upon this issue, the trial court may have come to the conclusion that the witness had an interest in the outcome of the case. Laurance had employed an attorney for the plaintiff. The contribution to the Industrial Accident Commission made by the company on account of the alleged employment of Butts was tendered after the accident. If the plaintiff prevailed against the Accident Commission there would perhaps be less danger of litigation between the plaintiff and the Lumber Company. Laurance testified that the agreement was that Butts should move logs. He was to take them from the place where the company had them 'cold decked' down to the mill, approximately a quarter of a mile distant, and was then to cold deck the same logs at the mill. He was to be paid $4 per thousand according to the mill scale when the Lumber Company got the returns from the mill. The work was to be done by the use of the caterpillar tractor which was the property of Butts. The logs which the Lumber Company brought in from the woods to its cold deck were the ones Butts was to take to the mill. All the logs in the cold deck were to be so taken. The agreement was that 'he had to have enough logs there to keep the mill going.' Butts had been working only four days when he was killed. During that time he had built roads into the mill to facilitate...