Jones v. Packer John Mines Corp.

• Decision Date: 25 October 1939
• Docket Number: 6736
• Citation: 60 Idaho 653,95 P.2d 572
• Parties: RICHARD H. JONES, Respondent, v. PACKER JOHN MINES CORPORATION and EARL CANTRELL, Employers, Appellants
• Court: Idaho Supreme Court

95 P.2d 572

60 Idaho 653

RICHARD H. JONES, Respondent, v. PACKER JOHN MINES CORPORATION and EARL CANTRELL, Employers, Appellants

No. 6736

Supreme Court of Idaho

October 25, 1939

WORKMEN'S COMPENSATION-EMPLOYERS-TEST-EVIDENCE.

1. The true test of whether corporation owning land being mined for silver ore, given miners by corporation, after abandonment of lease thereof by others, was "employer" of injured miner within Workmen's Compensation Act, is whether corporation was virtually operator of business of mining such ore for either development of property or its own pecuniary gain. (I. C. A., sec. 43-1806.)

2. In proceeding to recover compensation from corporation for injuries to one mining silver ore, given him by corporation on its land, evidence held to show that corporation was not virtually operator of business of mining ore for either development of property or its own pecuniary gain and hence not claimant's "employer" within Workmen's Compensation Act. (I. C. A., sec. 43-1806.)

APPEAL from the Industrial Accident Board.

Proceedings by Richard H. Jones for compensation under the Workmen's Compensation Act, opposed by Packer John Mines Corporation and Earl Cantrell, employers. From an order of the Industrial Accident Board awarding compensation the Packer John Mines Corporation and Earl Cantrell appeal. Reversed and remanded as to appellant Packer John Mines Corporation with directions to deny respondent's claim against it.

Reversed and remanded with directions. No costs awarded.

Hawley & Worthwine, for Appellant.

The Packer John Mines Corporation was not the proprietor or operator of the business carried on at the time Jones was injured. (Palmer v. J. A. Terteling & Sons, 52 Idaho 170, 16 P.2d 221; Fisk v. Bonner Tie Co., 40 Idaho 304, 232 P. 569; O'Boyle v. Parker Young Co., 95 Vt. 58 112 A. 385.)

Since the Packer John Mines Corporation permitted Cantrell and Jones to remove ten tons of ore as an act of charity, Jones was not covered by the Workmen's Compensation Law. (Secs 43-1001, 43-1811, I. C. A.; Goldberger v. Goldberger, 200 A.D. 190, 192 N.Y.S. 727; Maryland Casualty Co. v. Stevenson, 143 Okla. 285, 288 P. 954.)

J. M. Lampert, for Respondent.

It was the evident intention of the legislature to make the person or persons, company or corporation that for practical purposes was the proprietor or operator of the business being carried on, the employer, as the word is used in the statute though not actually the employer of the workmen by reason, among others, of there being an independent contractor who was the direct employer. (In re Fisk, 40 Idaho 304, at 307, 232 P. 569; O'Boyle v. Parker Young Co., 95 Vt. 58, 112 A. 385; McDowell v. Duer, 78 Ind.App. 440, 133 N.E. 839.)

The fact that claimant received no compensation direct from the Packer John Mines Corporation for his services is not conclusive of the relationship which actually existed. (Easton v. Industrial Acc. Com., 34 Cal.App. 321, 167 P. 288.)

HOLDEN, J. Ailshie, C. J., and Budge, Givens and Morgan, JJ., concur.

OPINION

HOLDEN, J.

--The Packer John Mines Corporation was formed in November, 1937, for the purpose of developing what is referred to in the record as the "Packer John" mines. In August of the following year the Packer John Mines Corporation, hereinafter called the "corporation," through its president and manager, C. Gordon Smith, entered into a written lease with J. C. Fattig and E. M. Murphy under the terms of which Fattig and Murphy were to furnish their own grub and the corporation was to furnish powder, tools and timber. The net lease proceeds were to be divided 50 per cent to the corporation and 50 per cent to the lessees. In addition to that written lease there were also oral leases to others on substantially the same terms, among them, Earl Cantrell.

On or about September 3, 1938, Cantrell, while in Boise, ran across claimant Richard H. Jones. At that time Jones was unemployed and had been so intermittently over a period of two years. A conversation took place between the two men, the evidence as to what was said being conflicting, but as a result Jones left Boise with Cantrell to go to the Silver Star mine where he worked without wages for about a week. They then moved to what is called the "Packer John" and began mining under the oral lease between Cantrell and the corporation. Jones, having had no previous mining experience, worked under the directions of Cantrell. At that time Jones knew nothing about the corporation. They worked in an open cut but later Cantrell decided the ore was not "running high enough" so they started to tunnel. Jones and Cantrell worked on the tunnel until mid-October. At that time returns were received on a shipment of a carload of ore mined by other lessees. The returns were so poor that the other lessees abandoned their leases, and shortly thereafter Cantrell also abandoned his oral lease.

Following the abandonment of the leases, Smith, by letter, offered Cantrell (and about the same time made the same offer to the other leasers) ten tons of ore out of any place on the mining property, apparently to compensate them for time spent in mining the poor ore, to pay grocery bills incurred during that time, and to give them an opportunity to "get even," out of which ten tons of ore the company would make no claim whatsoever and receive none of the proceeds. The lessees to whom these respective gifts of ore were made were to furnish their own powder, fuses, caps and grub, but they could mine wherever they desired. Cantrell and Jones then moved onto the property covered by the Fattig and Murphy written lease but which had been abandoned by Fattig and Murphy. December 11, 1938, while mining on that property with Cantrell, Jones suffered a broken back and broken leg as the result of a cave-in. He was removed to the St. Alphonsus Hospital in Boise and a month later removed to the Ada County Hospital.

In February, 1939, about 100 sacks of the gift ore, mined by Jones and Cantrell, were shipped to a smelter in the name of Melvin Nebbs. Payment therefor was withheld until receipt of a "silver certificate" from the corporation. Upon the giving of the "silver certificate" by the corporation in compliance with the Silver Purchase Act of 1934 (secs. 448-448c, Title 31, U.S.C. A.), the smelter released the money for the gift ore. Nebbs then deducted his grocery bill (not incurred by or in behalf of the corporation) from the check received from the smelter and remitted the balance to Cantrell. Cantrell held out some $ 16 for himself and requested Nebbs to remit the remainder to Jones, at that time in the hospital.

March 7, 1939, Jones filed notice of injury and claim for compensation with the Industrial Accident Board. June 13, 1939, the matter was heard. June 30, 1939, the Board made findings of fact and rulings of law, and July 1, 1939, made and entered thereon an amended award against the corporation and Earl Cantrell, as employers. The appeal is from that award.

It is contended by appellant corporation it was formed for the purpose of developing the mining property from which the gift ore was taken by Cantrell and Jones and that the work done by them in mining that ore was not performed for the purpose of developing its property nor for its pecuniary gain. On the other hand, it is contended by claimant that appellant, under the provisions of section 43-1806, I. C. A., was "virtually the proprietor of the business there carried on"; hence appellant corporation was the "employer" within the meaning of that statute, and consequently, is liable to pay compensation.

Section 43-1806, supra, provides:

"'Employer,' unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured it includes his surety so far as applicable."

This court in In re Fisk, 40 Idaho 304, 307, 232 P. 569, adopted the construction of an identical statute by the supreme court of Vermont in O'Boyle v. Parker Young Co., 95 Vt. 58, 112 A. 385, where that court said:

"It was the evident intention of the Legislature to make the person or persons, company or corporation, that for practical purposes was the proprietor or operator of the business being carried on, the employer, as the word is used in the statute, though not actually the employer of the workmen by reason, among others, of there being an independent contractor who was the direct employer. Under the provisions of the statute quoted, the true test is, Did the work being done pertain to the business, trade, or occupation of the defendant, carried on by it for pecuniary gain? If so, the fact that it was being done through the medium of an independent contractor would not relieve the defendant from liability."

The true test in the case at bar is, then, was appellant corporation virtually the operator of the business of mining the ten tons of gift ore either for the development of the property or for its own pecuniary gain? The testimony on that question follows.

Claimant Jones testified:

"Q. Did you at any time hear Mr. Cantrell or anyone else discuss a proposition some time in November or December concerning or relating to Cantrell taking out ten tons of ore?

"A. Well, I think along about the first or around the first--it was in October Mr. Cantrell made a trip to Boise, and when he came back he said Mr. Smith told him he could have ten ton of the best ore any...