Hollingsworth v. Robe Lumber Co.

• Decision Date: 21 May 1935
• Docket Number: 25439.
• Citation: 182 Wash. 74,45 P.2d 614
• Parties: HOLLINGSWORTH et al. v. ROBE LUMBER CO. et al.
• Court: Washington Supreme Court

45 P.2d 614

182 Wash. 74

HOLLINGSWORTH et al. v. ROBE LUMBER CO. et al.

No. 25439.

Supreme Court of Washington

May 21, 1935

Department 1.

Appeal from Superior Court, Snohomish County; Guy P. Alston, Judge.

Action by Robert Hollingsworth and others against the Robe Lumber Company and others. From a decree for plaintiffs, named defendant appeals.

Reversed and remanded, with direction to dismiss.

S. H Kelleran, of Seattle, for appellant.

Bascom & Bascom, of Monroe, for respondents.

MAIN, Justice.

This action was brought to recover wages for labor performed in a logging operation, and to foreclose liens for such labor. In the complaint there is an attempt to separately state four causes of action. In the answer, after denials to the material allegations of the complaint, there is an affirmative defense of a written contract executed by the plaintiffs and the defendant Robe Lumber Company. The trial was to the court without a jury, and no formal findings or conclusions of law were made. There was a decree against the Robe Lumber Company in the sum of $352.20, and the lien claimed was established and foreclosed. It was such a lien as is provided for in Rem. Rev. Stat. § 1149. The decree also provided that the defendant Hingston Box Company should pay into the registry of the court the sum of $231, which was owing by that company to the Robe Lumber Company. As to all the other defendants, the action was dismissed. From the decree, the Robe Lumber Company appeals, and the only parties to the appeal are that company and the respondents Robert Hollingsworth, Elmer Revoyr, and Nedwin Redick.

The appellant was the owner of a small sawmill, and some timber adjacent thereto, near the town of Robe, in Snohomish county. For some time prior to November 11, 1933, the mill had not been operating, and logging operations had ceased. The manager of the appellant was A. B. Mesher. Prior to the date mentioned, Mesher was offered a contract by the Hingston Box Company for 200 M feet of box lumber. He did not accept the offer until he could ascertain the cost of getting out the lumber. Through an employment agency, he was brought in contact with R. H. Tegtmeier. Neither had known the other prior to that time. Mesher explained to Tegtmeier that he would not start operations unless there could be lined up a logging crew and a mill crew on a contract basis.

Some time in the early part of November, 1933, a logging contract was entered into between the appellant and others who were to constitute, with Tegtmeier, the logging crew. Subsequent to this contract having been executed, Mesher accepted the Hingston Box Company's order for the box lumber. The contract with the men who were to operate the mill was not introduced in evidence, and is not involved in this case. The logging contract is dated November 11, 1933, and fixes the price for the logging of fallen timber and the price for the standing timber. Subsequently, another contract was entered into, which recited that it superseded and took the place of the previous contract. The second contract was signed by Tegtmeier, the three respondents and five others of the logging crew. Logging operations were begun some time Before the middle of November, 1933. Tegtmeier employed the crew and none of the respondents made any request for money until shortly Before Christmas. On or about January 11, 1934, the respondents demanded of the appellant wages for the work that they had done in the sum of $3.50 per day, less $1 per day which was taken out for board. The money was refused, and thereafter the lien claims were filed and this action begun.

As stated in the respondents' brief, 'the only question at issue in this case is as to the validity, force and effect of the pretended contract.' The contract referred to in the question is the second contract. The respondents say that the relation between them and the appellant was that of employer and employee. The appellant says that the respondents and the others who signed the contract were independent contractors. An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of the work, and not as to the manner or means by which it is accomplished. Cary v. Sparkman & McLean Co., 62 Wash. 363, 113 P. 1093; Schade Brewing Co v. Chicago, M. & P. S. R. Co., 79 Wash. 651, 140 P. 897; Johnston v. Seattle Taxicab & Transfer Co., 85 Wash 551, 148 P. 900.

The general test to be applied to determine the question of whether the relation of employer and employee exists is determined by whether the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done. Glover v. Richardson & Elmer Co., 64 Wash. 403, 116 P. 861; Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A. L. R. 460.

In determining the question of the relation of the parties attention must be given to the terms of the contract under which the operations were conducted. It recites that it is an agreement made between the Robe Lumber Company, the appellant, and 'R. H. Tegtmeier & Company, a copartnership as logging contractors,' and supersedes all agreements of prior date. It is provided in the contract that the contractors, meaning those associated with Tegtmeier, agree to furnish all the labor, one donkey engine, yarding and logging equipment, and the hand tools with which to cut, yard, load, and deliver the logs to the Robe Lumber Company's water pond. The schedule of prices is fixed at $1.48 per thousand feet for fallen timber and $2.08 for standing timber; also 'Fir peeler Blox as per specifications of the Robe Lumber Company $2.75 per M feet.' The tally and scale were to be based upon invoices received from the box company on the 10th of each month. There were to be no extra charges for building roads or extending railroad lines for logging operations. The Robe Lumber Company on its part agreed to furnish the 'contractors the existing rail line, one gas power driven locomotive (gas and oil to be furnished by contractors), one logging car, one donkey engine together with all the equipment for yarding and loading.' Tegtmeier & Co., in its operations, was required to comply with 'all state laws, fire warden regulations,...