Hinds v. Department of Labor and Industries of State of Washington

• Decision Date: 13 December 1928
• Docket Number: 21497.
• Citation: 272 P. 734,150 Wash. 230
• Court: Washington Supreme Court
• Parties: HINDS v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.

272 P. 734

150 Wash. 230

HINDS v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.

No. 21497.

Supreme Court of Washington

December 13, 1928

Department 2.

Appeal from Superior Court, King County; John B. Davidson, Judge.

Proceeding under the Workmen's Compensation Act by Marion R. Hinds claimant, to recover for the death of her husband. From a judgment reversing an order of the Department of Labor and Industries of the State of Washington dismissing the claim the Department of Labor and Industries appeals. Affirmed.

John H Dunbar and Mark H. Wight, both of Olympia, for appellant.

Kenneth Durham and Winter S. Martin, both of Seattle, for respondent.

MAIN J.

This is an appeal from a judgment of the superior court reversing an order of the Department of Labor and Industries dismissing a claim, which order had been affirmed by the joint board.

O. H. Johnston was killed July 5, 1927, while operating an airplane. His widow filed a claim with the Department of Labor and Industries for compensation for herself and minor children. Since the claim was filed, the widow has remarried and is Mrs. Hinds, the respondent. The department rejected the claim on the ground that the deceased was not a workman within the meaning of the Workmen's Compensation Act. Thereafter the claimant petitioned for a rehearing before the joint board. A rehearing was had upon which evidence was taken, and, as stated, the order of the department was affirmed. The trial court found that Johnston at the time of his death was an employee of one Leo Huber and entered a judgment directing the department to allow the claim. Huber was the owner of an airplane, and was engaged in business under the name of the Puget Sound Airways in taking up passengers for a flight around Lake Washington and also in instructing student flyers. Johnston was a pilot, but owned no plane. About two weeks prior to his death, he and Huber entered into an arrangement whereby he would become associated with Huber and make use of his plane for the purpose of taking up passengers and also student flyers. Johnston was to receive 40 per cent. of the gross compensation from the flights which he made, and Huber was to receive the other 60. Huber was to bear all the expense of keeping up the plane. When passengers or students were taken up at the conclusion of the flight, they as a rule paid Huber, and at the end of each day he gave to Johnston the portion that was coming to him. When Huber was absent Johnston was in charge of the plane and business of the Puget Sound Airways.

The appellant, the Department of Labor and Industries, says that the relation between Huber and Johnston was that of bailor and bailee. The respondent, the claimant, says that Johnston was an employee, the Huber. If Johnston was an employee, the claim should be allowed. If not, it should be disallowed. Inquiry must then be directed to determine what in law was the relation between these parties. Section 7675, Rem.

Comp Stat., which is one of the sections of the Workmen's Compensation Act, among other things, provides that: 'Workman means every person in this state, who is engaged in the employment of an employer. * * *' The rules for determining the existence of the relation of employer and employee are the same as those at common law for the relation of master and servant. Workmen's Compensation Law, Schneider, § 19. To create the relation of employer and employee or master and servant, there must be an express contract or acts such as will show that the parties recognize one as the employer and the other as the employee. Brewer v. Department of Labor and Industries, 143 Wash. 49, 254 P. 831. Whether a person performing work for another is a servant or employee of that other is a question not always easy of solution, but the authorities are in accord that the test of the relationship is the right of control on the part of the employer. Glover v. Richardson & Elmer Co., 64 Wash. 403, 116 P. 861; North Bend Lumber Co. v. Chicago, M. & P. S. R. Co., 76 Wash. 232, 135 P. 1017. The final test then appears to be whether there was the...