Fisk v. Bonner Tie Co.

• Decision Date: 03 January 1925
• Citation: 232 P. 569,40 Idaho 304
• Parties: In the Matter of the Claim of MYRA FISK for an Award on Account of the Death of ARTHUR N. FISK, Respondent, v. BONNER TIE COMPANY, a Corporation, and the STATE INSURANCE FUND, Surety, Appellant
• Court: Idaho Supreme Court

232 P. 569

40 Idaho 304

In the Matter of the Claim of MYRA FISK for an Award on Account of the Death of ARTHUR N. FISK, Respondent, v. BONNER TIE COMPANY, a Corporation, and the STATE INSURANCE FUND, Surety, Appellant

Supreme Court of Idaho

January 3, 1925

WORKMEN'S COMPENSATION ACT - COMPENSATION FOR DEATH - PROPRIETOR - INDEPENDENT CONTRACTOR - EMPLOYMENT OF WORKMEN BY INDEPENDENT CONTRACTOR - WORK WITHIN SCOPE OF PROPRIETOR'S BUSINESS-C. S., SEC. 6320.

1. Under the Idaho Workmen's Compensation Law, C. S., secs 6213-6339, and particularly sec. 6320, the proprietor of a business and his surety may be liable for injury to a workman, although he is employed by and works under the direction of an independent contractor, provided the work done at the time of the injury is a part of the business carried on by the proprietor.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. W. F. McNaughton, Judge.

Action for compensation under Workmen's Compensation Act. Judgment for claimant. Affirmed.

Judgment affirmed, with costs to respondent.

A. H Conner, Attorney General, and Herbert Wing, Assistant, for Appellants.

Under the authorities controlling in this matter Arthur N. Fisk at the time of his injury and death was not an employee of the Bonner Tie Company, and the claimant is not entitled to compensation under the Workmen's Compensation Act on any theory. (Kackel v. Serviss, 180 A.D. 54, 167 N.Y.S 348; Bache v. Salvation Army, 202 A.D. 17, 195 N.Y.S. 151; LaMay v. Duffy (Industrial Commission), 292 Ill. 76, 126 N.E. 604; Farmer v. Purcell, 109 Kan. 612, 201 P. 66; C. S., sec. 6320; sec. 19, chap. 217, Laws of 1921.)

E. W. Wheelan, for Respondent.

At the time of his death the deceased was an employee of the Bonner Tie Company. (C. S., secs. 6320, 6321.)

The doctrine of independent contractor is peculiar to the law of negligence and has no application to the workmen's compensation law. It is only in cases where the independent contractor is engaged in a separate and distinct industry other than the industry in which the injury occurred, that the doctrine of independent contractor is applied to the administration of the compensation law. (2 Schneider on Workmen's Compensation Law, sec. 533, p. 1439; McDowell v. Duer, 78 Ind.App. 440, 133 N.E. 839; Press Publishing Co. v. Industrial Acc. Com., 190 Cal. 114, 210 P. 820; O'Boyle v. Parker-Young Company, 95 Vt. 58, 112 A. 385.)

MCCARTHY, C. J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

This proceeding was instituted by Myra Fisk before the Industrial Accident Board of the state of Idaho against the Bonner Tie Company and the State Insurance Fund as surety to recover compensation under the Workmen's Compensation Act for the death of her husband, Arthur N. Fisk. The matter was submitted to a board of arbitration organized as provided by statute. The board of arbitration made an award. On review the Industrial Accident Board vacated and set aside the award and dismissed the application. On appeal to the district court the action of the Industrial Accident Board was set aside and the court remanded the matter to the Industrial Accident Board with orders to confirm and approve the award of the arbitrators and allow compensation to the claimant. From this judgment this appeal is taken.

The undisputed facts are that the Bonner Tie Company entered into a contract with one Derthick to haul ties and white pine match stock from its mill to the railroad. He was to receive 10 cents per tie and $ 3 per thousand for the match stock. Derthick employed one Danielson to do the hauling for $ 10 per day. On February 4, 1919, Danielson procured Arthur N. Fisk to drive his team for him, under his agreement with Derthick, and while so doing and on the same day Fisk met with the accident which resulted in his death. It is admitted that the accident arose out of and in the course of this employment. The respondent herein is the widow of said Fisk and the sole claimant.

Appellant assigns as error the lower court's action in setting aside the findings and award of the Industrial Accident Board and in remanding the matter to the Industrial Accident Board with orders to confirm and approve the award of the arbitrators, and allow compensation to the claimant.

The question presented by this appeal is whether or not Fisk, at the time of the injury resulting in his death, was an employee of the Bonner Tie Company within the meaning of the Workmen's Compensation Act.

Respondent contends that Fisk was an employee of the company by reason of C. S., sec. 6320, which reads as follows:

"'Employer' unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured it includes his surety so far as applicable."

Appellants contend that this section would apply only to a case in which a contractor came into the mill and performed his duties there. We cannot agree with this construction. The test under this section is whether the one for whom the work is done is virtually the proprietor or operator of the business carried on. Appellants also contend that appellant, Bonner Tie Company, is engaged in the business of manufacturing ties and match stock, and that hauling the same to the railroad was not a part of the company's business. We conclude this contention is without merit. 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.

In O'Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385, upon similar facts, and under an identical statute the court said:

"It was the evident intention of the Legislature to make the person or persons, company or corporation, that for practical purposes was the proprietor or operator of the business being carried on, the employer, as the word is used in the statute though not actually the employer of the workmen by reason, among others, of there being an independent contractor who was the direct employer. Under the provisions of the statute quoted, the true test is, Did the...