Idaho Times Publishing Company v. Industrial Accident Board of the State, 6902

• Citation: 126 P.2d 573,63 Idaho 720
• Decision Date: 29 April 1942
• Docket Number: 6902
• Parties: IDAHO TIMES PUBLISHING COMPANY and TWIN FALLS PUBLISHING COMPANY, Appellants, v. INDUSTRIAL ACCIDENT BOARD OF THE STATE OF IDAHO, Respondent
• Court: United States State Supreme Court of Idaho

126 P.2d 573

63 Idaho 720

IDAHO TIMES PUBLISHING COMPANY and TWIN FALLS PUBLISHING COMPANY, Appellants, v. INDUSTRIAL ACCIDENT BOARD OF THE STATE OF IDAHO, Respondent

No. 6902

Supreme Court of Idaho

April 29, 1942

Rehearing denied June 22, 1942

UNEMPLOYMENT COMPENSATION - EXCEPTED EMPLOYMENT - EVIDENCE, SUFFICIENCY OF.

1. Motor carriers who carried newspapers for publishing company to surrounding towns on mileage basis, and also parcels for others, and some of whom worked part of the time in various other employments, were engaged in an "independently established trade, profession or business" within meaning of provision of the unemployment compensation law excepting "employment" where one performing service is customarily engaged in an independently established trade profession or business, and hence publishing companies were not required to pay contributions on earnings of such carriers. (Sess. Laws, 1939, c. 239, pp. 575-577 secs. 18-1 to 18-3, 18-5 (e); Sess. Laws, 1937, c. 187, p 317, sec. 19 (g) (5)-(A-C).

2. Where evidence showed without contradiction that motor carriers who carried newspapers for publishing company to surrounding towns, were actually and customarily engaged in an independently established trade or business within meaning of provision of the unemployment compensation law excepting employment where service is performed by one so engaged Industrial Accident Board could not arbitrarily find to the contrary and compel company to pay contributions on earnings of the carriers. (Sess. Laws, 1939, c. 239, pp. 575-577, secs. 18-1 to 18-3, 18-5 (e); Sess. Laws, 1937, c. 187, p. 317, sec. 19 (g) (5) (A-C).)

3. A board, court or jury must accept as true the positive uncontradicted testimony of a credible witness, unless his testimony is inherently improbable or rendered so by facts and circumstances disclosed at the hearing or trial.

Rehearing denied June 22, 1942.

APPEAL from Industrial Accident Board.

Appeal from an order of the Board requiring Twin Falls News Publishing Company and Idaho Times Publishing Company to report to the Unemployment Compensation Division of the Industrial Accident Board all earnings of their route carriers, and to pay contributions thereon. Reversed and remanded with directions.

Reversed and remanded, with directions. Costs awarded appellants.

Chapman & Chapman and James T. Murphy, for Appellants.

The written agreements between petitioners and appellants and their independent motor vehicle carriers under the common law expressly create the relationship of independent contractor. (Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36, 19. A. L. R. 1164.)

Under the common law an independent contractor is one who, exercising an independent employment, undertakes to perform certain work according to his own methods, and without being subject to the control of his employer except as to the results of his work. (14 R. C. L. 67, Section 2; and cases cited under Note 6; Bouvier's Law Dictionary, 3rd Ed. , 1533; Annotation, 19 A. L. R. 227; 31 C. J. pp. 473-475; Goble v. Boise Payette Lumber Co., 38 Idaho 525, 527, 224 P. 439; Magee v. Hargrove Motor Company, 50 Idaho 442, 296 P. 774.)

The provisions of Section 19, subdivision (5) (A), Chapter 187 of the 1937 Session Laws, as amended by Section 18-5, subdivision (e) (1), Chapter 182, of the 1941 Session Laws, is a codification of the common law definition of an independent contractor, and is not contrary to nor does such statutory provision change, alter or abrogate the common law definition of an independent contractor. (Section 19, subdivision (5) (A), Chapter 187, 1937 Session Laws, as amended by Section 18-5, subdivision (e) (1), Chapter 182, 1941 Session Laws; Washington Recorder Publishing Co. v. Ernst, (Wash.) 91 P.2d 718, 124 A. L. R. 667; Wisconsin Bridge & Iron Co. v. Ramsay, 290 N.W. 199.)

Bert H. Miller, Attorney General, Thos. M. Robertson, Jr., and Paul B. Ennis, Assistant Attorneys General, for Respondent.

The statutory definition of employment in the Unemployment Compensation Law is broader than the scope of employer-employee, or master-servant as those terms are known to the common law. (McDermott v. State, 196 Wash. 261, 82 P.2d 568; Globe Grain and Milling Co. v. Industrial Commission of Utah, Utah 91 P.2d 512; In re Mid-America Co., 31 Federal Supplement 601 at 607.)

Cases cited by appellants in support of their contention, that the statutory and common law tests of employment are the same, are either out of point or have been overruled. (Washington Recorder Publishing Co. v. Ernst, 199 Wash. 176, 91 P.2d 718; Wisconsin Bridge & Iron Co. v. Ramsay, Wis. 290 N.W. 199.)

The theory of unemployment insurance, and the public policy underlying the same, as well as the practical operation of the whole program, all contend to support the proposition that the Legislature intended a broader coverage under the system than is found in the common law master-servant relation. (Globe Grain and Milling Co. v. Industrial Commission of Utah, 91 P.2d 512.)

HOLDEN, J. Budge, Ailshie, JJ., concur. GIVENS, C.J., MORGAN, J., dissenting.

OPINION

HOLDEN, J.

For many years the Twin Falls News, a morning newspaper, and the Idaho Evening Times, have been (and still are) published at Twin Falls, Idaho. Since 1935 these newspapers had the same control and management, the same circulation manager and identical agreements with their respective motor vehicle carriers. The agreement with these carriers follows:

"THIS AGREEMENT, Made this day of 19 , between , and Idaho Corporation, party of the first part, and of , Idaho, party of the second part, WITNESSETH:

That for and in consideration of the mutual promises herein contained, the parties hereto agree as follows:

(1) The said party of the second part agrees to deliver and distribute the newspaper published by the party of the first part on each day of the week except Sunday, from the building occupied by the , at in the City of , County of , State of Idaho, to such persons and at such places and along such route or routes, and on such regular schedule or schedules as may be from time to time designated and furnished to him by the said party of the first part, the time of and the routes and schedules for said delivery and distribution, and the strict adherence thereto being the essence of this contract.

In the event contingencies render it apparently impossible for said party of the second part to conform to said regular schedules or routes, he agrees to promptly notify the party of the first part by telephoning its mailing room, stating the facts and reasons therefor.

(2) The said party of the first part agrees to pay to said party of the second part therefor the sum of cents per mile for each and every mile traveled by him from the building occupied by the said party of the first part and return to , over the most direct route, for the delivery and distribution of said papers under the terms hereof; that in the event said party of the second part shall deliver in excess of an average of newspapers per mile, computed on the miles traveled from the building occupied by the party of the first part to the last delivery upon the route so designated, that the said party of the second part shall receive in addition thereto the sum of cents for each delivery made on said route over and above the said average delivery per mile; less the following sums as stipulated damages for defaults and failure on the part of the party of the second part; for each delay or lateness of from to minutes, CENTS, and from to minutes, cents; for each time the party of the first part for any reason hires or procures another vehicle to replace or relieve vehicle of the party of the second part, $ to $ , this being dependent upon the price said party of the first part has to pay third party for the services, to be paid weekly.

(3) The said party of the second part shall make such delivery and distribution according to his own means and methods of conveyance, which shall belong to and be in the exclusive charge and control of the party of the second part and which shall not be subject to control or supervision of said party of the first part, excepting as to the results of said work, and it is hereby expressly understood that the party of the first part does not hereby hire or rent the use of the same, or assume any liability for the use or method of use thereof.

(4) This agreement may be terminated by either party at any time without notice.

(5) The terms of this agreement shall not be changed, modified, altered or supplemented excepting in writing signed by the parties hereto."

June 26th, 1939, the attorney for the Industrial Accident Board rendered an opinion termed "Administrative Ruling No. 109" which the Board held in obeyance until November 14, 1940, at which time it issued "Administrative Ruling No. 185," by which the Board held these newspapers were engaged in "Covered Employment."

Thereafter these newspapers filed a joint petition with the Board seeking a review of the above mentioned rulings. January 7th, 1941, the petition was heard by the Board. At the hearing, Al Westergren, circulation manager of both newspapers (the only witness called) testified on direct examination:

"Q. Do you know, Mr. Westergren, whether or not your motor carriers perform other services than other--than under the contracts exhibits 'C' and 'D'?

A. I do.

Q. And for other persons?

A. For other persons.

Q. What is the situation in that respect?

A. They carry parcels, the majority of them, parcels for various--

MR. SUPPIGER: Are you testifying from your own knowledge or information?

A. From my own knowledge.

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