Clearwater Timber Protective Ass'n v. District Court of Second Judicial Dist. In and For Clearwater County, No. 9056

CourtIdaho Supreme Court
Writing for the CourtMcFADDEN; KNUDSON; TAYLOR, J., with whom SMITH
Citation369 P.2d 571,84 Idaho 129
PartiesThe CLEARWATER TIMBER PROTECTIVE ASSOCIATION, an unincorporated association; E. C. Retting, President; Roger L. Guernsey, Vice President; Adrian G. Nelson, Secretary-Treasurer; A. B. Curtis, Chief Fire Warden; E. C. Retting, Director; Roger L. Guernsey, Director; Leonard Cardiff, Director; R. G. Sackerson, Director; Ralph Schmidt, Director; L. Cardiff, Inc.; Milwaukee Land Company; Hunt Foods and Industries, Inc., (formerly Ohio Match Company); Potlatch Forests, Inc.; Grace C. Rubedew; Schaeffer Hitchcock Company; Schmidt Brothers; State of Idaho; White Pine Lumber Company, Plaintiffs, v. The DISTRICT COURT OF the SECOND JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF CLEARWATER, Hon. Jack McQuade, Judge, Defendant.
Docket NumberNo. 9056
Decision Date20 February 1962

Page 571

369 P.2d 571
84 Idaho 129
The CLEARWATER TIMBER PROTECTIVE ASSOCIATION, an unincorporated association; E. C. Retting, President; Roger L. Guernsey, Vice President; Adrian G. Nelson, Secretary-Treasurer; A. B. Curtis, Chief Fire Warden; E. C. Retting, Director; Roger L. Guernsey, Director; Leonard Cardiff, Director; R. G. Sackerson, Director; Ralph Schmidt, Director; L. Cardiff, Inc.; Milwaukee Land Company; Hunt Foods and Industries, Inc., (formerly Ohio Match Company); Potlatch Forests, Inc.; Grace C. Rubedew; Schaeffer Hitchcock Company; Schmidt Brothers; State of Idaho; White Pine Lumber Company, Plaintiffs,
v.
The DISTRICT COURT OF the SECOND JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF CLEARWATER, Hon. Jack McQuade, Judge, Defendant.
No. 9056.
Supreme Court of Idaho.
Feb. 20, 1962.
Rehearing Denied March 26, 1962.

[84 Idaho 130] Morgan & Morgan, Lewiston, for plaintiffs-applicants.

[84 Idaho 131] Eli Rapaich of Rapaich & Knudson, Lewiston, for defendant, also appearing for James Raymond Wooderchak and wife, real parties in interest.

[84 Idaho 132] McFADDEN, Justice.

This original proceeding in prohibition was instituted to restrain the defendant

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District Court from proceeding further in an action brought before it by James R. Wooderchak and his wife against the plaintiffs for damages for the death of their son on August 28, 1956, allegedly having been caused by the negligence of the plaintiffs here.

The Wooderchaks heretofore filed a claim before the Industrial Accident Board, naming as employer the Clearwater Forest Protective District (herein referred to as the District, to distinguish it from the Plaintiff Association), and its surety. This claim was later dismissed by the Board as to the Wooderchaks, by reason of a letter from their counsel requesting dismissal, but the Board ordered payment to the State of Idaho, as parens patria, under the provisions of I.C. § 72-301.

The District Court action of the Wooderchaks referred to, joined as defendants all the plaintiffs in this action, and the Northern Pacific Railway Company, which company did not join in this application. The complaint in the lower court alleged the Association is unincorporated and consists of the other defendants named in the lower court, as members, officers, or directors. It is further alleged that the State Forester, under authority of I.C. § 38-105, created the District, and appointed a fire warden; that their deceased son was an employee of the District, and working under the direction and control of the fire warden or his subordinates. This complaint alleges the State Forester, under authority of I.C. § 38-134, entered into an agreement with the Association, and the State Board of Land Commissioners of Idaho, and as a part of this contractual relationship, the Association furnished a jeep vehicle used by the Wooderchak youth at the time of the accident.

Negligence is charged in the complaint against the Association in the furnishing of the jeep in its dangerous condition, with actual or constructive knowledge on the part of the defendants of its condition. It is claimed that such negligence was the primary cause of the accident and death of the Wooderchak youth.

The district court defendants (plaintiffs here) moved to dismiss the complaint on the ground it failed to state a claim upon which relief could be granted, and also that the District Court had no jurisdiction [84 Idaho 133] of the matter, it being vested exclusively in the Industrial Accident Board. This motion was denied, and this application for Writ of Prohibition made.

The Wooderchak youth was employed directly by the District, and not by the Association, he having been hired by the deputy fire warden, who in turn has been hired by the fire warden. The fire warden was employed by the Association and the District. The fire warden hires and supervises both the association and district employees. From a letter of the State Forester in the record, it appears that he did not believe the three party agreement between the State Forester, the Association and Board of Land Commissioners, was applicable, 'it--does not cover slash disposal activities.' The Wooderchak youth was allegedly, from his payroll record, being employed on 'Slash Disposal' project.

The agreement of the Association, State Forester and Board of Land Commissioners, granted the Association, subject to Forestry Laws, the right to furnish, operate and maintain a protective system for detection, prevention, and suppression or forest fires in the District, providing for reimbursement of costs and expenses from both members of the association and from non-members who had lands in the district. The association agreed to furnish protection of forest lands in the district. It was agreed all State Land in the district was covered by the agreement, with provision for payment of costs.

Under the forestry laws, landowners and timber operators must furnish fire protection during the closed season (June 1 to Sept. 30). If they fail to furnish such protection, the State Forester is required to do so, charging them the actual costs. I.C. §§ 38-107, 38-108. The landowner or

Page 573

operator may contract with the State Forester to assume this responsibility I.C. § 38-404. The State Forester is authorized by I.C. § 38-134(c) to contract with others for the purposes of fire protection of lands in the district, and he is charged with the supervision, control, and management of all fire hazards created by operators, and fire hazard reduction plans.

The District, the Wooderchak youth's direct employer, is of statutory creation; the State Forester, as authorized by I.C. § 38-105 created this district and appointed its Chief Fire Warden.

Admitting they were not the direct employers, the plaintiffs claim by reason of the facts and law, to be the Wooderchak youth's statutory employer under I.C. § 72-1010 1 and hence that the District Court [84 Idaho 134] is without jurisdiction to hear the negligence action, citing In re Fisk, 40 Idaho 304, 232 P. 569, and Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831.

The Fisk case was an action under the Workmen's Compensation Law where an employee of a sub-contractor was killed while hauling material. The principal, the Bonner Tie Company, and its surety, were held liable under what is now I.C. § 72-1010 1, as a statutory employer. There this court stated: 40 Idaho 304, 307, 232 P. 569, 570;

'The company is engaged in the manufacture of ties and match stock, but a part of its business is the sale of its products. The evidence shows that the hauling to the railroad was a necessary incident to the sale of the ties and match stock. We conclude the company was the proprietor or operator of the business carried on at the place of the accident within the meaning of the statute.'

The Nottingham case, supra, was an action in negligence against a claimed third party where an employee of a sub-contractor was killed and the principal contractor held not responsible as a third party; it was held the principal contractor was an employer under the provisions of I.C. § 72-1010, and the case dismissed. This court quoted from O'Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385, 386, also quoted in In re Fisk (supra), as follows:

'* * * Under the provisions of the statute quoted, the true test is, Did the work being done pertain to the business, trade, or occupation of the defendants, carried on by it for pecuniary gain? If so, the fact that it was being done through the medium of an independent contractor would not relieve the defendant from liability.'

These two cases are controlling here only if the record affirmatively discloses that the relationship existing between the Association and the District was such that the Association can be considered as the 'general contractor', or if the record affirmatively discloses that the Association falls within the statutory definition of 'employer' set forth in I.C. § 72-1010.

If the relationship existing between the District and Association is that of employer and third person, the rule of these two [84 Idaho 135] cases is not applicable. This court has repeatedly recognized that actions by an employee, his heirs or personal representatives against a third person for damages for personal injuries or death by reason of actionable negligence of a third party,

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are not abolished by the Workmen's Compensation Law. I.C. § 72-204 2, Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054; Gifford v. Nottingham, supra; Lake v. State, 71 Idaho 107, 227 P.2d 361; Brown v. Arrington Const. Co., 74 Idaho 338, 262 P.2d 789; White v. Ponozzo, 77 Idaho 276, 291 P.2d 843.

Plaintiffs contend that by the very nature of the Association's business, i. e., forest protection, and the nature of the business of the members of the association, i. e., landowners of forest land, by custom, necessity and statute, they also are engaged in the business of forest protection, and all are encompassed within the statutory definition of employer and hence immune from the district court action. It is also claimed slash disposal is one of the requirements of forest protection. I.C. § 38-110

While this contention may be meritorious after all facts have been fully developed, the record here only discloses that the Wooderchak youth died as a result of a personal injury by accident arising out of and in the course of his employment by the District. The lower court complaint shows he was an employee of the district, working under the direction and control of the Fire Warden or his subordinates. What were his exact duties, the nature of his work, and other pertinent items requisite for full determination of the relationship his particular activities had to that of the Association and its members does not appear, nor is the sphere of activity of the Association and its members as compared to that of the District established. While the...

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8 practice notes
  • David Steed and Associates, Inc. v. Young, No. 17252
    • United States
    • United States State Supreme Court of Idaho
    • September 6, 1988
    ...of law." The right of appeal is regarded as a plain, speedy and adequate remedy at law. Clearwater Timber Protective Ass'n v. Dist. Court, 84 Idaho 129, 369 P.2d 571 (1962); Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950). Where an order is appealable, mandamus will not lie. Aker v. Aker, ......
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • July 22, 1969
    ...466 (1950); accord, Clearwater Timber Protective Association v. District Court of Second Judicial Dist., In and For Clearwater County, 84 Idaho 129, 369 P.2d 571 (1962). The order of ejectment is an appealable order. I.C. § 13-201. The facts before us, however, indicate that appeal is not s......
  • Provo v. Bunker Hill Company, Civ. No. 2-73-49.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 26, 1975
    ...Act and then maintain an action for damages against his employer. Cf. Dissent, Clearwater Timber Protective Association v. District Court, 84 Idaho 129, at p. 143, 369 P.2d 571 (1962), interpreting the `some other person than the employer' language of Idaho Code 72-204 as manifestly preclud......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...unless there is no plain, speedy and adequate remedy in the ordinary course of law. Clearwater Timber Protective Ass'n v. District Court, 84 Idaho 129, 369 P.2d 571 (1962). In a proper case this court has the authority to issue a writ of prohibition. Art. 5, § 9, Idaho Const.; I.C. § In Bak......
  • Request a trial to view additional results
8 cases
  • David Steed and Associates, Inc. v. Young, No. 17252
    • United States
    • United States State Supreme Court of Idaho
    • September 6, 1988
    ...of law." The right of appeal is regarded as a plain, speedy and adequate remedy at law. Clearwater Timber Protective Ass'n v. Dist. Court, 84 Idaho 129, 369 P.2d 571 (1962); Smith v. Young, 71 Idaho 31, 225 P.2d 466 (1950). Where an order is appealable, mandamus will not lie. Aker v. Aker, ......
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • July 22, 1969
    ...466 (1950); accord, Clearwater Timber Protective Association v. District Court of Second Judicial Dist., In and For Clearwater County, 84 Idaho 129, 369 P.2d 571 (1962). The order of ejectment is an appealable order. I.C. § 13-201. The facts before us, however, indicate that appeal is not s......
  • Provo v. Bunker Hill Company, Civ. No. 2-73-49.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 26, 1975
    ...Act and then maintain an action for damages against his employer. Cf. Dissent, Clearwater Timber Protective Association v. District Court, 84 Idaho 129, at p. 143, 369 P.2d 571 (1962), interpreting the `some other person than the employer' language of Idaho Code 72-204 as manifestly preclud......
  • Muench v. Paine, No. 139
    • United States
    • United States State Supreme Court of Idaho
    • January 16, 1970
    ...unless there is no plain, speedy and adequate remedy in the ordinary course of law. Clearwater Timber Protective Ass'n v. District Court, 84 Idaho 129, 369 P.2d 571 (1962). In a proper case this court has the authority to issue a writ of prohibition. Art. 5, § 9, Idaho Const.; I.C. § In Bak......
  • Request a trial to view additional results

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