Fitzen v. Cream Top Dairy, 7893
| Decision Date | 29 October 1952 |
| Docket Number | No. 7893,7893 |
| Citation | 249 P.2d 806,73 Idaho 210 |
| Parties | FITZEN v. CREAM TOP DAIRY et al. |
| Court | Idaho Supreme Court |
Anderson & Anderson, Pocatello, for appellants.
E. B. Smith, Boise, for respondents.
Cream Top Dairy operated a dairy near, but outside, the city limits of Pocatello, Idaho. Franklin Richard Fitzen entered into an oral agreement with the Dairy to dig a cesspool as a necessary part of the sanitary sewage disposal system of the Dairy. While so engaged Fitzen encountered bad air and poisonous gas some 37 feet below the surface which seeped into the area below the shaft, overcoming him and causing his death, on August 7, 1951.
The dependents of decedent filed an appropriate claim for compensation benefits under the Workmen's Compensation Act, I.C. § 72-101 et seq. Upon hearing before the Industrial Accident Board the claim was denied on the ground that the relationship between the Dairy and the decedent was that of principal and independent contractor, and not that of employer and employee, and further, that Fitzen, at the time was engaged in casual employment and that the employer had not filed an election with the Industrial Accident Board for compensation coverage of any casual employment.
From the decision of the Board this appeal was taken.
The decision of the Board involves a determination of two questions of law, that is, whether or not the decedent was an independent contractor or an employee, and, if an employee, whether he was, at the time of his death, engaged in casual employment. By appropriate assignments of error the questions of law are raised on this appeal.
The deceased was regularly employed by the Railroad Company as a machinist's helper five days a week. There is no evidence in the record that he engaged in digging cesspools for any one other than the Dairy.
The agreement between the Dairy and deceased was oral; the terms and conditions of such employment were not known by any one except the deceased and Mr. Thomson who, together with his wife, were the sole owners of the Dairy. The only testimony in the record as to the terms and conditions of the agreement is that of Mr. Thomson, which is in part supplemented by the testimony of Mr. Gardner, who was employed and paid by deceased, to help him.
The Dairy being located outside the city limits of Pocatello, it was not connected with the city sewage disposal system. It was necessary as a part of the sanitary operation of the Dairy that it have and maintain an adequate sewage disposal system; this was accomplished by the construction and use of cesspools on the property from time to time. From 1934 to the date of the death of Fitzen the Dairy had dug nine cesspools to replace those which had filled up. Six of them had been dug by the father of deceased and the last three, exclusive of the one decedent was digging at the time of his death, had been dug by him in 1949. The necessity for additional cesspools was certain, recurring, and anticipated; the life of a cesspool could not be determined in advance.
Mr. Thomson contacted deceased in July, 1951, and a conference followed in which an oral arrangement was entered into to dig a cesspool and if gravel formation was encountered additional cesspools would be dug; Mr. Thomson purchased the necessary lumber to crib three such cesspools it was his practice to dig them in series; if lava rock or other insurmountable obstacles were encountered during the course of digging a cesspool, the work on such cesspool would be discontinued and payment made to the party doing the digging at the unit rate of $4.50 per foot. The parties agreed that the cesspool should be 4' X 4 1/2' and that it should be dug to and into the gravel, as the earlier cesspools had been dug. The payment of $4.50 per foot included installation of cribbing for the first ten feet of the bottom of the cesspool and labor for sawing the lumber required for such cribbing. The Dairy was to pay for all lumber and furnish labor for sawing any additional lumber necessary for cribbing over and above the ten feet, as well as cement for topping the cesspool; all other labor, together with the necessary machinery and equipment and its upkeep and maintenance, was to be furnished by Fitzen.
There were no set hours of employment or time for completion, but Thomson told deceased that he wanted the cesspool completed as soon as possible; Fitzen did the work on the days he did not work for the Railroad; Fitzen was to dig until he struck gravel and continue as far as he could in the gravel; he had previously dug three cesspools for the Dairy and each party in a general way knew what was expected of the other, without specific arrangements or instructions.
There were no arrangements with reference to nor any deductions made for Social Security or Withholding Tax.
During the construction of the cesspool the Dairy advanced money to deceased, and after his death paid his widow the balance for all work done to the time of his death on the unit basis of $4.50 per foot, although the cesspool was not completed.
After Thomson selected the site, deceased commenced work on one cesspool and Gardner on another; Gardner testified that it was his understanding from Fitzen that they were to dig three cesspools; when they had dug between three and four feet on each cesspool, Thomson stopped the work on one of them. Thomson stopped them from sawing cribbing lumber in excess of the ten feet for one cesspool, as he was to do the work on additional cribbing as it was needed; Thomson instructed them at the time he stopped them from sawing further lumber for cribbing, not to cut or saw any more until they found out how the formation was in the first well.
As had been the practice on previous occasions, and as instructed, they separated the good gravel from the dirt and put them in separate piles.
Although the dimensions of the cesspool were understood, Thomson never did check the dimensions of any which Fitzen had previously dug or the one in question.
The evidence as to whether or not Thomson had the authority to say if the work should continue or stop was confined solely to the testimony of Thomson. The other party to the contract was dead and his lips closed. The testimony of Thomson as to the presence or absence of authority on his part to order the work stopped or continued was not responsive, was evasive and lacked positiveness, although he was pressed for a definite answer. The form of the question every time it was asked...
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