Hiebert v. Howell

• Decision Date: 15 December 1938
• Docket Number: 6608
• Citation: 85 P.2d 699,59 Idaho 591
• Parties: ANNIE HIEBERT, Widow and Natural Guardian of MALINDA HIEBERT, WALTER HIEBERT, FRANCES HIEBERT and EVELYN HIEBERT, Dependent Minor Children, Respondent, v. HERBERT S. HOWELL and NORTHWEST INDEMNITY EXCHANGE, Appellants
• Court: Idaho Supreme Court

85 P.2d 699

59 Idaho 591

ANNIE HIEBERT, Widow and Natural Guardian of MALINDA HIEBERT, WALTER HIEBERT, FRANCES HIEBERT and EVELYN HIEBERT, Dependent Minor Children, Respondent, v. HERBERT S. HOWELL and NORTHWEST INDEMNITY EXCHANGE, Appellants

No. 6608

Supreme Court of Idaho

December 15, 1938

WORKMEN'S COMPENSATION - EMPLOYEE WITHIN ACT - INDEPENDENT CONTRACTOR-EMPLOYEE A MEMBER OF PARTNERSHIP-LIABILITY FOR COMPENSATION TO EMPLOYEE OF CONTRACTOR OR SUBCONTRACTOR-SERVICE OF CLAIM-AWARD-RIGHTS OF MINOR CHILDREN.

1. A logging partnership and the members thereof could individually or collectively take employment to haul and skid timber for a third person and become ordinary employees, as distinguished from independent contractors, as respects liability of employer for compensation for death of member of partnership.

2. A workman employed to haul and skid timber was an "employee" and not an "independent contractor," and employer was liable for compensation for his death, notwithstanding that checks in payment for the work were made in favor of partnership of which workman was a member and the other members of which were also employed to haul and skid timber, and that the members furnished their own trucks and hauling equipment and boarded themselves, where members could quit or be discharged at any time and could be shifted to different jobs and were required to go to work at a particular hour, and their operation as to time, place, and manner of loading and delivering timber was directed by employer.

3. The failure of deceased workman's widow to serve notice on subcontractor and make a claim for compensation against the subcontractor as well as against employer did not deprive widow of right to recover compensation from employer for herself and minor children for death of workman. (I. C. A sec. 43-1611.)

4. The purpose of statute making employer, contractor, and subcontractor liable for compensation to employee of a contractor or subcontractor and providing that employer could recover compensation paid by him from contractor or subcontractor, was to require the original employer contractor, and subcontractor to pay compensation to workmen injured on the job, whether they were employed by the original owner, employer, contractor, or by a subcontractor. (I. C. A., sec. 43-1611.)

5. A statute making employer, contractor, and subcontractor liable for compensation to employee of a contractor or subcontractor, and providing that employer could recover compensation paid by him from contractor or subcontractor did not prevent employee from making his claim and asserting it directly against the employer, contractor, or subcontractor, singly or altogether. (I. C. A., sec 43-1611.)

6. Under statute making employer, contractor, and subcontractor liable for compensation to employee of a contractor or subcontractor, and providing that employer could recover compensation paid by him from contractor or subcontractor, an employer desiring to have the subcontractor brought in or bound by an order or judgment that may be entered against the employer must have such subcontractor made a party to the proceedings. (I. C. A., sec. 43-1611.)

7. Nonresident widow who appeared in person and prosecuted her claim for workmen's compensation both for herself and her nonresident minor children could recover compensation for the minors without the appointment of a guardian for them. (I. C. A., secs. 15-1845 to 15-1848, 43-1101, subd. 2.)

8. Minor children always have an interest in a compensation award such as will at any time give them a legal standing before the board and the courts to protect their interest in the compensation, and if a mother to whom an award is made should neglect the minors and dissipate the fund and not use any of it for their support, they could petition the board for an order di- recting their share of the compensation to be paid to a guardian for their use and benefit. (I. C. A., sec. 43-1101, subd. 2.)

9. If a mother should neglect to make application for compensation or should allow the statute of limitations to run against her claim for compensation, her minor children would still have a right to petition for an award of compensation. (I. C. A., sec. 43-1101, subd. 2.)

10. Under the Workmen's Compensation Act, an award to the mother for herself and minor children may, in the sound discretion of the Industrial Accident Board, all be paid to the widow or be segregated, part to the mother and part to the children, and the widow may collect such an award as it falls due and the employer and insurance carrier will be discharged pro tanto as each payment is made, but in case of separate awards a guardian must be appointed or designated to collect and disburse the minor's share of the award. (I. C. A., secs. 15-1845 to 15-1848, 43-1101, subd. 2.)

APPEAL from the Industrial Accident Board. From order granting award to widow and minor children of deceased workman, defendants appeal. Affirmed.

Affirmed. Costs to respondent.

Ralph S. Nelson and Spencer Nelson, for Appellants.

A member of a partnership, composed of four members engaged in different lines of work and supplying their own materials, sharing expenses, and dividing the profits, when killed in an accident arising out of a contract between the said partnership and another logging contractor, is an independent contractor and does not come under the compensation law. (Sec. 43-1896, I. C. A.; In re Black (Black v. Isaak), 58 Idaho 803, 80 P.2d 24; Taylor v. Blackwell Lbr. Co., 37 Idaho 707, 218 P. 356; E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Horst v. Southern Idaho Oil Co., 49 Idaho 58, 286 P. 369; Robichaud's Case, 234 Mass. 60, 124 N.E. 890; Hall v. Southern Advance Bag & Paper Co., (La. App.) 158 So. 829.)

Dependents in a foreign state having no guardian appointed are not authorized to remove property from this state or to sue for the same in their own name. (Secs. 15-1845, 15-1848, I. C. A.; In re Bones, 48 Idaho 85, 280 P. 223.)

No proceeding and subsequent ruling of law and award can be made against an alleged contractor without a claim for compensation or action brought against the first contractor for which subcontractor it is claimed deceased was working. (Secs. 43-1202, 1203, 1204, 43-1611, I. C. A.; In re Fisk, 40 Idaho 304, 232 P. 569; Palmer v. J. A. Terteling & Sons, 52 Idaho 170, 16 P.2d 221; Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612.)

Karl Paine, Wm. B. McFarland and Harry M. Morey, for Respondent.

Manner of payment does not, of itself, conclusively show a status of independent contract. The status of independent contract or employment is to be determined according to the relationship of the parties and the right to supervise and right to discharge and the intent of the parties are usually indicative of a status of employment. (E. T. Chapin & Co. v. Scott, 44 Idaho 566, 260 P. 172; Taylor v. Blackwell Lbr. Co., 37 Idaho 707, 218 P. 356; In re Black, 58 Idaho 803, 80 P.2d 24; Burchett v. Department of Labor & Industries, 146 Wash. 85, 261 P. 802, 803, 263 P. 746; Hansen v. Rainbow Mining & Milling Co., 52 Idaho 543, 17 P.2d 335.)

That deceased was a member of a partnership, if such be the fact, and that he applied his earnings to partnership expense, if such be the fact, does not preclude the existence of the relationship of employee with a person for whom he was working. (Angell v. White Eagle Oil & Refining Co., 169 Minn. 183, 210 N.W. 1004; Benson v. Marshall County, 163 Minn. 309, 204 N.W. 40; C. R. Meyer & Sons Co. v. Industrial Com., 194 Wis. 615, 217 N.W. 408.)

Howell was the principal contractor and the employer and claim for compensation need be made only upon him. (In re Fiske, 40 Idaho 304, 232 P. 569; I. C. A., secs. 43-1611, 43-1806.)

Defense that claim was not served is waived unless raised by answer or at the time of trial. (Smith v. McHan Hardware Co., 56 Idaho 43, 48 P.2d 1102; Red River Lbr. Co. v. Pillsbury, 174 Cal. 37, 161 P. 982.)

If a claimant is not mentally incompetent or not a minor, compensation may be paid him direct regardless of his residence. (In re Bones, 48 Idaho 85, 280 P. 223; I. C. A., secs. 43-1104, 43-1101.)

AILSHIE, J. Holden, C. J., Morgan, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

Appellant Howell had been continuously engaged in the business of buying standing timber in Shoshone county, near Cataldo in Kootenai county and at other places, and of selling logs and contracting the logging out to logging contractors. Henry, David and Gus Hiebert and Frank Fast, a partnership, owned real and personal property including logging trucks, trailers, caterpillars and all equipment for skidding and hauling logs. David and Gus handled the trucks and Henry operated the caterpillar; Fast worked on a jammer.

During the early summer of 1937 the brothers had been working for wages for Lartz Brothers in Bonner county. In July of that year Gus and Henry, with two others, visited Howell's camp at Cataldo, seeking better employment. Howell offered them a job hauling logs, and the boys started to work on the Edson contract, Howell having "absolute supervision over them" from July 15th to September 1st. Checks were made out to the partnership and each man shared equally in the total earnings. September first Dave and Gus went to work for James Paullus, a subcontractor of Howell, and Paullus was their boss after that time, although Howell carried insurance for the men and "paid them direct."

In the afternoon of September 10th Gus was coming up the hill with his truck. Finding a truck parked ahead of him he walked around the curve of the road and saw his brother David's body lying face down in the tracks of the road. The wheels of the latter's truck had passed over...