Hubbard v. Department of Labor and Industries

• Decision Date: 24 March 1939
• Docket Number: 27177.
• Citation: 88 P.2d 423,198 Wash. 354
• Court: Washington Supreme Court
• Parties: HUBBARD v. DEPARTMENT OF LABOR AND INDUSTRIES (PACIFIC COAST COAL CO., Intervener.

88 P.2d 423

198 Wash. 354

HUBBARD v. DEPARTMENT OF LABOR AND INDUSTRIES (PACIFIC COAST COAL CO., Intervener.

No. 27177.

Supreme Court of Washington

March 24, 1939

Department 1.

Proceeding under the Workmen's Compensation Act by John H. Hubbard claimant, opposed by the Department of Labor and Industries of the state of Washington, wherein the Pacific Coast Coal Company intervened. From a judgment affirming order of the Department of Labor and Industries rejecting claim for compensation, the claimant appeals.

Judgment affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Kenneth Durham, of Seattle, for appellant.

G. W Hamilton, J. A. Kavaney, and T. H. Little, all of Olympia and Little & Leader, of Seattle, for respondents.

STEINERT Justice.

Appellant, John H. Hubbard, lost his left hand through injury sustained while operating a power saw in a fuel yard. His claim for compensation was rejected by the department of labor and industries. On appeal to the superior court, where trial without jury was had, solely upon the departmental record, the court affirmed the order of rejection. This appeal is from the judgment of the superior court.

There is but one question presented here, namely: Was appellant a workman within the definition of the workmen's compensation act of this state, Rem.Rev.Stat. § 7673 et seq.? The trial court held that he was not.

The facts as found by the court are these: Some time prior to January, 1937, one William Richardson, a W. P. A. worker, owning a wood saw which had been constructed upon an old automobile chassis, decided to engage in the business of sawing wood for various fuel companies located in the Rainier Valley district, in Seattle. Upon Richardson's solicitation, appellant, Hubbard, also a W. P. A. worker, was induced to enter and establish the business. The two men purchased a new blade and generator and installed them upon the apparatus. Hubbard owned an automobile which he agreed to furnish for transporting the sawing device from place to place as jobs were secured. To operate the wood saw, the services of three men were required. The two associates prevailed upon one McDonald, likewise a W. P. A. worker, to join them in the venture. All three of the men were experienced wood cutters and sawyers.

The three men verbally agreed with each other that the receipts of the business, after payment of the expenses of operation, maintenance and depreciation of the apparatus, should be divided equally among them. With this understanding, they sought employment in the community, holding themselves out as partners ready and willing to saw wood for any one engaged in the fuel business.

During the first three months in 1937 they secured jobs, at various times, with the owners of five different fuel establishments, including the Pacific Coast Coal Company, intervener herein and owner of a number of fuel yards in the city of Seattle, among which was one located on Rainier Avenue. In the performance of these jobs, the three men did all the work incident to the operation, without any directions or supervision from the parties by whom they were engaged. All of the men were equally conversant with the various duties connected with the operation, and, for their own convenience, they frequently exchanged positions in the conduct of the work. They purchased the gas for the operation of the saw, made all the repairs at their own expense, and transported the apparatus from place to place as jobs were available. They worked according to their own time and inclination, commencing in the morning, stopping for lunch, and quitting in the evening as they desired, without any direction or control from any one. Compensation for their work was figured on the basis of the number of cords of wood sawed on the particular job. At first they charged 75 cents a cord; this was later increased to 85 cents. As each job was finished collections were made by any one of the three from the particular employer. From the total amount thus collected there was deducted the sum of 31 cents per cord to pay the necessary expenses, and the balance of 54 cents was divided so as to give each man 18 cents per cord. Whenever one of the men was unable to work, they procured a substitute who came in on the same basis as the original three.

During the period of the partnership arrangement, the parties completed several wood-sawing jobs at the fuel yard of Pacific Coast Coal Company in the manner and under the conditions already stated. At the beginning of each job the company indicated to the men the amount of wood to be sawed, the length of the cut, and the place where the sawed wood was to be piled. But the company exercised no supervision or control over the men as to the means or method of doing the work.

During one of the jobs at the Pacific Coast Coal Company's yard, appellant, while feeding the saw, sustained the injury for which compensation is now sought.

The facts as thus found by the court are amply sustained by the evidence. There was also evidence of some additional facts which may be mentioned. The work of sawing was done on Saturdays, and at other odd times, when the three men were not engaged in W.P.A. work. Upon one occasion when the men were negotiating for a job at another fuel yard, they were asked by the proprietor whether they had industrial insurance, and appellant then stated that they did not require insurance because they were a partnership. In the various jobs at the Pacific Coast Coal Company, they were engaged and directed to cut either an approximate number of cords or else an amount sufficient to fill a near-by shed. Upon one occasion, while there, they worked on Sunday, or a holiday, in order to complete the particular job; this was upon their own volition. On another occasion, they quit their work temporarily in order to complete a job at another fuel yard. Although there was no definite agreement as to the right to terminate any particular job, it was apparently believed, or assumed, both by the coal company and by the three men, that either party could terminate a job at any time.

With these facts Before us, we proceed to the question of law presented relative to the legal status of appellant at the time of his injury.

Rem.Rev.Stat. § 7675, which is part of the workmen's compensation act, provides by definition that: 'Workman means every person in this state, who is engaged in the employment of any employer * * *.' Insofar as our workmen's compensation act is concerned, the rules for determining the existence of the relation of employer and employee are the same as those applied at common law for determining the relation of master and servant. 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; Hinds v. Department of Labor and Industries, 150 Wash. 230, 272 P. 734, 62 A.L.R. 225.

An independent contractor is one who, while rendering service in the course of an independent occupation, represents 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. Simila v. Northwestern Improvement Co., 73 Wash. 285, 131 P. 831; North Bend Lumber Co. v. Chicago, Milwaukee & Puget Sound Ry. Co., 76 Wash. 232, 135, P. 1017; Johnston v. Seattle Taxicab & Transfer Co.,

85 Wash. 551, 148 P. 900; Leech v. Sultan Ry. & Timber Co., 161...