King v. State Indus. Acc. Commission

• Decision Date: 27 March 1957
• Citation: 309 P.2d 159,211 Or. 40
• Parties: Elsie KING, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION, Appellant.
• Court: Oregon Supreme Court

Page 159

309 P.2d 159

211 Or. 40

Elsie KING, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 23, 1957.

Decided March 27, 1957.

Joe B. Richards, Eugene, argued the cause for respondent. With him on the brief were Luvaas & Cobb, Eugene.

Earl M. Preston, Asst. Atty. Gen., argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, State Industrial Accident Commission, from a judgment in favor of the plaintiff, Elsie King, which the circuit court entered in a proceeding instituted by her as the widow of Lyle M. King to recover compensation for her husband's death. The judgment was entered after a jury had found that (1) at the time of his death King was an employee of a firm entitled Huber & Fisher; (2) King was engaged in a hazardous occupation; and (3) the accident which resulted in the death arose out of and in the course of King's employment.

The death of Lyle M. King, to whom we will refer as King, occurred through drowning January 2, 1954, after he had entered a small boat at Waldport on Alsea Bay. After the death, the plaintiff filed with the defendant Industrial Accident Commission a report of it. September 3, 1954, the defendant rejected the claim for compensation benefits. January 20, 1955, the commission reaffirmed its order. February 7, 1955, this proceeding was instituted.

The complaint alleged that at the time of the fatal accident, King was an employee of the aforementioned partnership, that he and the partnership were engaged in a hazardous occupation and that the work consisted of 'construction of a log raft, placing of boom sticks, repairing a pile driver, and driving of piling at the logging operation of his employer on Alsea Bay near Waldport.' Further, the complaint alleged that the defendant rejected the claim for compensation benefits 'on the grounds that the deceased was an independent contractor and not subject to the provisions of the Workmen's Compensation Law on the date of said death.' The answer admitted the averment last quoted. Other parts of the complaint, which the answer denied, stated that King 'was an employee of Huber & Fisher at the time of his death.' In the manner just indicated, the issue was created to which the parties have devoted their principal efforts; that is, was King at the time of the accident an employee of Huber & Fisher or was he an independent contractor.

The following is a copy of the jury's verdict '1. Was Lyle M. King on January 2, 1954, an employe of Huber and Fisher and while in such employ engaged in a hazardous occupation?

'Answer:--yes--(yes or no). (If your answer is 'no,' you need not answer Question 2. If your answer is 'yes,' then you will answer the following question.)

'2. Did the accident and resultant death of Lyle M. King on January 2, 1954, arise out of and in the course of his employment as an employee for Huber and Fisher?

'Answer:--yes--(yes or no).'

The challenged judgment remanded the claim to the defendant

'to cancel and set aside its orders of September 1, 1954 and January 20, 1955, and that she be granted widow's benefits and that her minor children, Judy Kay King and Larry D. King, be allowed benefits as surviving dependent children * * *.'

If the trial in the circuit court was free from prejudicial error and if the verdict is supported by substantial evidence, the challenged judgment must be affirmed. The following is a synopsis of the evidence.

The firm of Huber & Fisher was engaged in the logging industry in the area adjacent to Alsea Bay. King had entered into a contract with the firm whereby he agreed to fell trees, buck the logs and skid them to the bay. The place of the operations was about two miles across the bay from Waldport. In conducting his operations, King had three employees. One was his son Alton, another his son-in-law Loren McWhorter and the third, Henry King, seemingly was his brother. The record affords scant information as to the terms of the logging contract which King had with Huber & Fisher, but indicates that it was in parol and that operations began in October. Some time after the logging got under way the site was shifted and in consequence provision had to be made whereby the logs that were brought to the bay by King could be cared for. Thereupon Huber & Fisher decided to construct a log boom for the reception of the logs and incidental thereto to drive piling so that the boom sticks which would form one side of the log boom could be fastened to the piling, thereby preventing the boom from floating away. Since no pile driver was available, it was necessary to construct one. King and his three aforementioned helpers were engaged by Huber & Fisher to build the pile driver. After it had been constructed, Huber & Fisher transported it to the place where it would be used, and then King and his crew were employed to drive the piles and string the boom sticks. Parts of November and December were devoted to the work which we just mentioned. One witness testified that at the time of King's death (January 2, 1954) 'the lower end' of the log boom was not finished. Another said that about ten or fifteen of the boom sticks had been strung and that six or seven more remained to be put in place. While King and his fellow workers were performing the above-described work, the logging operations were suspended.

The above shows that King performed two types of service for Huber & Fisher; one consisted of logging and the other of construction work. Both parties agree that the logging (falling, bucking and skidding) was performed under an agreement which constituted King an employer. King was, in fact, registered with the commission as an employer engaged in logging. The parties are at issue as to King's status while he and the other three men were engaged in constructing the pile driver and the log boom.

January 2, 1954, King, who lived about 55 miles from Waldport, left his home at 6:00 a. m. in his pickup truck and shortly called at the homes of two, or possibly all three, of the men with whom he worked. The group drove to a dock at Waldport where King kept a boat, 14 feet long, equipped with a seven-horse-power motor. He and the other three men generally used the boat in crossing the bay to the scene of their work. After he had left his home King was not seen alive by any person who testified. His body and that of his three companions were later found in the bay--all had drowned. Likewise, the upturned boat and its motor were found in the bay. King's watch had stopped at 9:05 a. m. When his body was found it was seen that he was wearing his working clothes including his logging boots. The shoes which he wore when he left home were in the truck. No one claims that King or any of his companions had reached the site of the incomplete log boom. Evidence indicates that during the night before the fatality a storm had come in from the ocean and the water of the bay had become rough. In the morning when death struck, an exceptionally high tide was running. The boat which King possessed would have been necessary to their work of stringing the log sticks had that been the work for which they were headed. The trip across the bay, two miles in length, was the only means by which the group could have reached the boom which they were constructing, for the other route by automobile was impassable at high tide.

The defendant contends that the record contains no evidence showing that King was an employee of Huber & Fisher. It argues that King worked upon the pile driver and the log boom as an independent contractor. If that is true, the record contains no evidence as to the amount which King was to receive for his work. The plaintiff submits that King and his three fellow workers built the pile driver, operated it and were constructing the log boom as employees of Huber & Fisher. According to her, they worked for wages which were based upon an hourly scale.

ORS 656.202 says:

'If any workman * * * sustains a personal injury by accident arising out of and in the course of his employment * * * he or his beneficiaries, if the injury results in death, shall receive compensation * * *.'

ORS 656.124 says:

'If any person engaged in a business and subject to * * * as an employer, in the course of such business, lets a contract the principal purpose of which is the performance of labor, such labor to be performed by the person to whom the contract was let or by such person with the assistance of others, all workmen engaged in the performance of the contract are deemed workmen of the person letting the contract, if the person to whom the contract was let was not engaged in a separate business involving the occupation covered by the contract at the time of commencing the performance of the contract.'

We shall now summarize the evidence which the plaintiff presented upon the issue of which we have just taken note. It was received over the objections of the defendant, and the rulings which admitted it are the subject matter of assignments of error to which we will later give attention.

Lawrence C. Huber, a member of Huber & Fisher, gave the following testimony:

'Q. As a matter of fact, did Mr. Lyle King do other work for Huber & Fisher in the late part of 1953 as an employee of Huber & Fisher, as well as the work he had done as an independent contractor? A. In the late part he did. I might clarify this a little bit. Due to the movement of this next setting which required putting the logs into the water over a tide flat, instead of putting them into the water over a rollway, which had been the case prior to bad weather, why it involved driving some piling into the channel across a distance of about a thousand feet of tide flat, and stringing some boom logs out...