Larson v. Independent School District No. 11J of King Hill
| Decision Date | 18 April 1933 |
| Docket Number | 5920 |
| Citation | 22 P.2d 299,53 Idaho 49 |
| Parties | M. E. LARSON, Widower, and DAVID W. LARSON, Minor Son, Appellants, v. INDEPENDENT SCHOOL DISTRICT No. 11J OF KING HILL, IDAHO, Employer, and STATE INSURANCE FUND, Surety, Respondents |
| Court | Idaho Supreme Court |
WORKMEN'S COMPENSATION ACT - EMPLOYEE - DEPENDENT - MINOR CHILD SUPPORT OF.
1. In determining whether person is employee within compensation acts, compensation for services may be in other things than money.
2. Under a well-established common-law rule, person who at employee's request assists in doing employee's work furthering employer's business with employer's acquiescence becomes in effect "employee."
3. In determining who is employee or workman under compensation acts, common-law definition of employee or workman is applicable.
4. Person hired by employee to assist him with employer's knowledge is deemed "employee"; exercise of control being unnecessary if right of control exists.
5. School janitor's wife, who, with knowledge of school board members, assisted janitor, whom members had told that wife's assistance would be necessary, held "employee" within Compensation Act (I. C. A. 1932 secs. 43-901 et seq., 43-1106, 43-1118).
6. Under Compensation Act providing that child under eighteen shall be deemed dependent whether actually dependent on deceased or not, minor child held dependent and entitled to compensation for mother's death (I. C. A. 1932, secs 31-1003, 43-1102).
7. Under statute, mother is liable for minor child's support (I. C. A. 1932, sec. 31-1003).
8. Minimum award of $6 weekly to minor child for death of janitor's wife who assisted janitor with employer's knowledge held proper under evidence, where employer's accident report fixed wife's salary at $35 monthly, plus room, heat and light (I. C. A. 1932, secs. 43-1102, 43-1106, 43-1118).
9. In compensation proceeding by father and minor child for mother's death where child was entitled to compensation award for funeral expenses held properly allowed (I. C. A. 1932, sec. 43-1101).
10. Transcripts from Industrial Accident Board should comply, like other transcripts, with court rule requiring witnesses' names to be on bottom of pages (Supreme Court Rule 19).
APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Charles E. Winstead, Judge.
Proceeding under the Workmen's Compensation Act. Judgment for defendants. Reversed and remanded with instructions.
Petition for rehearing denied.
A. F. James, for Appellants.
Where a person is procured by an employee to act as his substitute or to assist him in his duties, and the employer assents to the arrangement, such assistant occupies the position of an employee, even though the assistant receives no compensation for his service. (18 R. C. L., pp. 577, 578, and cases there cited; Aga v. Harbach, 127 Iowa 144, 102 N.W. 833, 109 Am. St. 377; W. H. Neill Co. v. Rumpf, 148 Ky. 810, 147 S.W. 910, L. R. A. 1917C, 1199; New York State Industrial Com., (1919) 20 St. Dept. Rep. 365; Great A. & P. Tea Co. v. Hattle, 205 Wis. 7, 236 N.W. 575.)
A person who takes the place of a regular employee in compliance with the employee's request and with the knowledge of the employer is held to be an employee within the Workmen's Compensation Act. (Carter v. Wood Bros. Construction Co., 120 Kan. 481, 244 P. 1; Bollinger v. Hill City, 116 Kan. 604, 227 P. 265.)
P. B. Carter, for Respondents.
The relation of employer and employee is contractual. To create the relation there must be an express contract, or such acts as will show unequivocally that the parties recognize one another as master and servant. Nothing can be presumed or inferred and the employee should be held to strict proof that he is an employee. (Hamilton v. Randall, 136 Okla. 170, 276 P. 705.)
"The construction of the terms 'employer' and 'employee,' as above set out, gives the general suggestion that a contract of hire, written or oral, expressed or implied, must be found to exist between the persons claiming compensation and the one against whom the claim for compensation is made, otherwise the latter is not liable to pay the compensation provided under the act."
Appellant M. E. Larson was employed under a written contract June 12, 1931, by respondent Independent School District No. 11J of Elmore county, to do janitor work in the school building at King Hill at $ 70 a month. Though not specified in the written contract, appellant and his family were furnished, in addition to the $ 70 per month, with living quarters in the school building, light, heat, water and such accommodations.
From the beginning of the rendition of services as janitor commencing August 1, 1931, until November 14, 1931, appellant Larson was assisted by his wife Hilda C. Larson, on which latter date Mrs. Larson was killed by falling or slipping, and striking her head on a mop bucket she was using on one of the floors in the lunch-room in the school building.
This appeal is here from a judgment reversing an award in favor of the minor son, David W. Larson, made by the Industrial Accident Board.
Though M. E. Larson, the widower, sought compensation, it was denied both by the board and the trial court.
There are only two questions herein: first, whether Mrs. Larson was an employee of the school district, and second, whether David W. Larson, the son, about eleven years old at the time of the accident, was a dependent under the statute entitled to compensation.
From the record it is apparently conceded that if Mrs. Larson was an employee of the school district, responsive insurance was carried by the school district with the State Fund.
Respondent's position rests on the written contract of employment, which does not mention Mrs. Larson, and was solely between the school district and M. E. Larson, and the payroll report, which, so far as pertinent herein, is as follows:
. . . .
. . . .
On the back of the document under "Detail of Payroll by Pay Days" under Code No. 9014, appears $ 70 per month from July 31st to June 30th.
Two of the members of the school board testified that there was no contract with anyone other than M. E. Larson.
In opposition, there is, first, the inconsistency in the payroll itself, which required the payroll to include the value of board, etc., furnished the employee, which it did not do, naming only $ 70 per month, since the evidence was without conflict in showing that Larson received in addition to $ 70 per month, the living and housing accommodations above noted, and compensation may be in other things than money. ( Gabel v. Industrial Acc. Com., 83 Cal.App. 122, 256 P. 564.)
The school board filed with the Industrial Accident Board November 23, 1931, a report as of November 20, 1931, and a second report was filed November 30th, dated November 28th, as follows:
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