In re Death of Black

• Decision Date: 09 May 1938
• Docket Number: 6549
• Citation: 58 Idaho 803,80 P.2d 24
• Parties: In the Matter of the Death of LEO B. BLACK. v. JOHN D. ISAAK, Appellant OLIVE J. BLACK, on Behalf of Herself and Minor Child, DENTON BLACK, Respondent,
• Court: Idaho Supreme Court

80 P.2d 24

58 Idaho 803

In the Matter of the Death of LEO B. BLACK.

OLIVE J. BLACK, on Behalf of Herself and Minor Child, DENTON BLACK, Respondent, v. JOHN D. ISAAK, Appellant

No. 6549

Supreme Court of Idaho

May 9, 1938

WORKMEN'S COMPENSATION-RELATION OF EMPLOYER AND EMPLOYEE-EVIDENCE-PRESUMPTION OF CONTINUANCE.

1. A finding of fact of the Industrial Accident Board is conclusive on appeal to the Supreme Court only when it is supported by competent, material, and relevant evidence. (Sess. Laws, 1937, chap. 175.)

2. The supreme court will review evidence on which the Industrial Accident Board made findings, to determine its competency and relevancy to support such findings, and will be governed by rules applicable to a court trial. (Sess. Laws, 1937, chap 175.)

3. Findings of the Industrial Accident Board, if not supported by sufficient, competent, and substantial evidence, are not binding on the courts. (I. C. A., sec. 43-901 et seq., as amended.)

4. In compensation proceedings, claimant had burden of establishing relationship of employee and employer. (I. C. A., sec. 43-901 et seq., as amended.)

5. Evidence that deceased employee earned $200 in one month $663.60 from March until the following August, $8 per day from one employer, and 40 cents per hour from employer for whom he worked when he was killed, authorized compensation award providing for payment of $8.80 weekly to dependent widow until child became 18 years old, died, or married, and for payment of $8 thereafter until widow died or remarried the payments not to continue over 400 weeks. (I. C. A., sec 43-1106, as amended by Sess. Laws, 1937, chap. 134.)

6. Evidence authorized finding of Industrial Accident Board that deceased who was engaged in shingling when he was fatally injured was an "employee" and not an "independent contractor," so as to entitle his widow to compensation for herself and child. (I. C. A., sec. 43-901 et seq., as amended.)

7. The relation of employer and employee shown and well-nigh conceded to have existed immediately prior to the day of an accident will be presumed to continue to exist until the contrary is shown and the relationship changed, as respects right to compensation. (I. C. A., sec. 43-901 et seq., as amended.)

8. The presumption of continuance of relation of employer and employee is rebuttable and slight or strong according to attendant circumstances, but it may be considered in weighing evidence as to injured or deceased party's status as respects compensation, and placed in the scales in his behalf as against contention that he was an independent contractor. (I. C. A., sec. 43-901 et seq., as amended.)

9. The relationship of independent contractor, once shown to exist, is presumed to continue, as respects compensation. (I. C. A., sec. 43-901 et seq., as amended.)

10. As respects compensation, mode of payment is not a decisive test by which to determine whether injured or deceased party is an "employee" or an "independent contractor," but test is whether contract reserved to alleged employer the power of control over injured or deceased party. (I. C. A., sec. 43-901 et seq., as amended.)

11. The Compensation Act is to be given a liberal construction in favor of employee, but such construction cannot be extended to bring an independent contractor within the act. (I. C. A., sec. 43-901 et seq., as amended.)

APPEAL from the Industrial Accident Board.

Direct appeal from an order of the Industrial Accident Board awarding compensation to respondent for herself and minor child. Affirmed.

Affirmed. Costs awarded to respondent.

O. R. Baum and Ben Peterson, for Appellant.

A finding of fact of the Industrial Accident Board of the state of Idaho is conclusive on appeal to the district court and the supreme court only when it is supported by competent, material and relevant evidence. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Cor. Jur., Workmen's Compensation Acts, p. 94; Schwabb v. Emporium Forestry Co., 167 A.D. 614, 153 N.Y.S. 234; Madden's Case, 222 Mass. 487, 111 N.E. 379, L. R. A. 1916D, 1000.)

Merrill & Merrill, for Respondent.

The appellant in the case at bar was carrying on a business for profit and was not engaged in casual employment. ( Industrial Com. v. Funk, 68 Colo. 467, 191 P. 125; Domer v. Castator, 82 Ind.App. 574, 146 N.E. 881; Miller & Lux v. Industrial Acc. Com., 32 Cal.App. 250, 162 P. 651; American Steel Foundries v. Industrial Board, 284 Ill. 99, 119 N.E. 902.)

A casual employee is covered by the Workmen's Compensation Law of Idaho. (Flynn v. Carson, 42 Idaho 141, 243 P. 818.)

Payment for work on a unit price rather than on a time basis does not make a workman an independent contractor. (Workmen's Compensation Law by Snyder, p. 309; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Hansen v. Rainbow Mining & Milling Co., 52 Idaho 543, 17 P.2d 335.)

GIVENS, J. Morgan, Ailshie and Budge, JJ., concur. Holden, C. J., did not participate.

OPINION

GIVENS, J.

Respondent, widow of Leo B. Black, known as and called Lee, filed on behalf of herself and one minor child, a claim before the Industrial Accident Board, against appellant as employer of her husband for his accidental death in falling off a roof of appellant's apartment house, being remodeled by and under the direction and supervision of appellant, where deceased was shingling.

The board awarded respondent, on behalf of herself and minor child, against the appellant, $ 302.60 as reimbursement for expenses incurred, and compensation for the use and benefit of herself and minor child at the rate of $ 8.80 a week until said minor child reaches the age of eighteen years on the 21st day of August 1944, or dies or marries, and thereafter compensation for claimant's own use and benefit at the rate of $ 8 a week until her death or remarriage, but not to exceed a period of four hundred weeks from and after the 12th of August, 1937. The appellant brings the award here for direct review under 1937 Session Laws, chapter 175, on two points. First, "the absence of competent and substantial evidence of the income of the deceased, to establish the award of $ 8.80," and second, "the absence of competent and substantial evidence to support the finding that Leo B. Black, the deceased, was an employee and working for 40 [cent] an hour, and not an independent contractor."

Appellant asserts as decisive these points of law: (1) That a finding of fact of the Industrial Accident Board is conclusive on appeal to the supreme court only when it is supported by competent, material and relevant evidence; (2) that the supreme court will review the evidence produced before the Industrial Accident Board upon which they made findings, to determine its competency and relevancy to support the findings made by such board, and will be governed by rules applicable to court trial; (3) that the findings of the Industrial Accident Board, if not supported by sufficient competent and substantial evidence, are not binding and conclusive upon the courts; and (4) the burden is on the claimant to establish the relationship of employee and employer before the claimant can recover; all of which may be accepted as correct statements of law.

Section 43-1106 as amended by 1937 Session Laws, chapter 134, page 215, provides death benefits, as far as material herein, as follows:

"In computing death benefits the total weekly compensations shall be subject to a maximum of twelve dollars per week and a minimum of six dollars per week; provided, that in the case of a dependent widow or of more than one dependent child, the minimum shall be eight dollars per week. But if at the time of the injury the employee received wages of less than . . . . the minimum herein fixed, then the compensation shall not exceed the full amount of such wages."

The award was for the minimum and the analysis and resume of the testimony indicate the showing was sufficient to justify the award. Mrs. Black kept account of her husband's earnings; she put things on a budget; put on a calender every day what he gave her; she knew what wages he was getting; most generally he gave her the checks; gave her from March until August, 1937, $ 663.60; saw two checks he received from appellant; worked for various people, naming them, and one of them testified and corroborated her in this; received from one, $ 8 per day, another $ 30; he earned over $ 200 in October; appellant paying him 40 [cent] per hour; worked for appellant intermittently.

The testimony tending to show the relation of master and servant rather than independent contractor is as follows: Delome Kohier, witness for respondent, who lived about half a block or less from the house being remodeled, testified he saw three or four men on the roof, so far as he could tell laying tar paper and putting shingles on and he saw deceased on the roof just before he fell, it being respondent's contention that if there were several there putting on shingles it negatived the idea deceased had an independent contract to do all the shingling himself. Ada Sutton, witness for respondent who lived cata-corner from appellant's house, saw deceased on the roof about two hours before the accident laying tar paper and putting shingles on, he was the only one she could see shingling. Mrs. Delome Kohier saw men putting tar paper on the roof and shingling, and on cross-examination, testified she didn't know if the other men were shingling; she imagined the others were doing the same; knew deceased was; didn't know what the others were doing.

Mrs Black testified as follows concerning a conversation with appellant after the accident: Isaak told her he had no compensation; he had built two other apartment houses and this one hiring men by the day...