Modlin v. Twin Falls Canal Co.

• Decision Date: 03 April 1930
• Docket Number: 5389
• Citation: 286 P. 612,49 Idaho 199
• Parties: RALPH MODLIN, Claimant and Respondent, v. TWIN FALLS CANAL COMPANY and CLEAR LAKES SYNDICATE, Employers and Respondents, and MARYLAND CASUALTY COMPANY, Surety and Respondent, and STATE INSURANCE FUND, Surety and Appellant
• Court: Idaho Supreme Court

286 P. 612

49 Idaho 199

RALPH MODLIN, Claimant and Respondent, v. TWIN FALLS CANAL COMPANY and CLEAR LAKES SYNDICATE, Employers and Respondents, and MARYLAND CASUALTY COMPANY, Surety and Respondent, and STATE INSURANCE FUND, Surety and Appellant

No. 5389

Supreme Court of Idaho

April 3, 1930

WORKMEN'S COMPENSATION ACT-EMPLOYER, DETERMINATION OF.

1. Injuries to employee of general employer while working for third party under contract held within employment by general employer rendering latter's insurer liable (C. S., secs 6278, 6280 and sec. 6320, as amended by Laws 1921, chap. 217 sec. 19).

2. That employer, when employee sustained injuries, might have been engaged in ultra vires act is immaterial as affecting right to compensation.

3. That employer was not making profit from work during course of which employee was injured held not to affect employee's right to compensation.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Ralph Modlin was awarded compensation against the Twin Falls Canal Company and its surety, State Insurance Fund, by the Industrial Accident Board. The district court affirmed the award. Appeal by the State Insurance Fund. Affirmed.

Judgment affirmed. Costs to respondent.

Walters Parry & Thoman, J. R. Keenan and Scatterday & Stone, for Appellant.

The fact that the Canal Company designated claimant as a party who should operate its machinery on the Syndicate's work does not make claimant the employee of the Canal Company. (C. R. Meyer & Sons Co. v. Industrial Com., 194 Wis. 615, 217 N.W. 408; Murray v. Wasatch Grading Co., (Utah) 274 P. 940.)

The Syndicate having control of manner, means and method of doing the work, having the power to lay claimant off, and in effect paying his wages, it is the special employer of claimant, and therefore solely liable to him. (Scribner's Case, 231 Mass. 132, 3 A. L. R. 1178, 1181, 120 N.E. 350; Pruitt v. Industrial Acc. Com., 189 Cal. 459, 209 P. 31; Oklahoma General Power Co. v. State Industrial Com., 108 Okla. 251, 235 P. 1095; Chisholm's Case, 238 Mass. 412, 131 N.E. 161; Arnett v. Hayes Wheel Co., 201 Mich. 67, 166 N.W. 957; Cayll v. Waukesha Gas etc. Co., 172 Wis. 554, 179 N.W. 771; United States Fidelity & Guaranty Co. v. Stapleton, 37 Ga.App. 707, 141 S.E. 506; Security Union Casualty Co. v. Hunt, (Tex. Civ. App.) 294 S.W. 695; Crawfordsville Shale Brick Co. v. Starbuck, 80 Ind.App. 649, 141 N.E. 7; Dale v. Hual Const. Co., 175 A.D. 284, 161 N.Y.S. 540.)

Charles M. Kahn, for Respondents Clear Lakes Syndicate and Maryland Casualty Company.

A servant is employed by the party under whose direction, subject to whose order and under whose control he was at the time of the injury. (Stewart v. California Imp. Co., 131 Cal. 125, 63 P. 177, 724, 52 L. R. A. 205; Teller v. Bay & River Dredging Co., 151 Cal. 209, 12 Ann. Cas. 779, 90 P. 942, 12 L. R. A., N. S., 267; Billig v. Southern P. Co., 189 Cal. 477, 209 P. 241; Warner v. Synnes, 114 Ore. 451, 44 A. L. R. 904, 230 P. 362, 235 P. 305; Farmer v. Purcell, 109 Kan. 612, 201 P. 66; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 255, 53 L.Ed. 480; Taylor v. Blackwell Lumber Co. , 37 Idaho 707, 218 P. 356.)

Bothwell & Chapman, for Respondent Twin Falls Canal Company, and Charles A. North, for Respondent Ralph Modlin, file no brief.

LEE, J. Givens, C. J., and Varian and McNaughton, JJ., concur.

OPINION

LEE, J.

Ralph Modlin, claimant and respondent, was by the Industrial Accident Board awarded compensation against respondent, Twin Falls Canal Company, and its surety, State Insurance Fund, appellant. The State Insurance Fund having appealed, the district court found that the board's findings of fact and conclusions of law were true and correct, and affirmed the award. From the judgment entered, the State Insurance Fund again appealed.

The errors assigned may be reduced to two main contentions, viz.: that, when injured, claimant was a special employee of respondent, Clear Lakes Syndicate, and not the employee of respondent, Twin Falls Company, and that, if he was an employee of the Twin Falls Canal Company, the work he was engaged in was ultra vires and not covered by the policy with the State Insurance Fund.

Upon sufficient evidence determined by the board, the court found that respondent Clear Lakes Syndicate, being engaged in the construction of a dam and spillway, had made arrangements with the Twin Falls Canal Company, "to rent from the latter certain rock drilling machinery consisting, among other things, of an air compressor, jack-hammer and drills, together with the services of two men to operate the same, agreeing to pay for the use of the said machinery $ 2.00 an hour while it was in use, and to reimburse the defendant, Twin Falls Canal Company, for the wages it paid to the men operating the machinery"; that the claimant, Ralph Modlin, and George Wilcox, on the day of the injury, "were the employees of the Canal Company, and were operating the compressor, jack-hammer and drills for the said Canal Company; that the said employees were paid by the Canal Company and were not subject to discharge by the Clear Lakes Syndicate; that the Canal Company furnished a camp wagon for said Modlin and Wilcox in which they lived separate and apart from the employees of said Clear Lakes Syndicate." There was a further finding that the Canal Company had for some years been accustomed to do rock drilling, blasting, well drilling and road making for other people and corporations, and that, whenever it utilized the particular machinery that had been rented to the Clear Lakes Syndicate, it employed claimant, Modlin, either to run the jack-hammer or do the "powder work," and that, when the rental agreement with the Clear Lakes Syndicate was entered into, the manager of the Canal Company instructed its foreman, George Wilcox, to hunt up and engage Modlin to operate the jack-hammer on the work that was to be done for the Clear Lakes Syndicate. Upon these facts, the board and the court concluded as a matter of law that the claimant sustained a personal injury by accident arising out of and in the course of his employment with the Canal Company, and was entitled to an award against said company and its surety, State Insurance Fund.

An examination of the record supporting the findings shows that the Clear Lakes Syndicate exercised no supervision whatever over the work of the crew furnished by respondent Canal Company. The former's foreman merely pointed out where the projected work was to be done; and the crew, under Wilcox's orders, proceeded to its accomplishment. The Canal Company paid its men by voucher, and billed the Clear Lakes Syndicate for such disbursement together with the rental charge for the machinery aforesaid. Its position was virtually that of an independent contractor, irrespective of whether it was making a profit or not. There was no such direction or control of claimant by the Clear Lakes Syndicate as could have constituted him even its special employee: he was at all times subject to the call of the Canal Company, the same as a guardsman after accepting the Queen's shilling.

Practically the same situation has been discussed by the courts many times heretofore, notably by the California court in Stewart v. California Imp. Co., 131 Cal. 125, 63 P. 177, 724, 52 L. R. A. 205, Teller v. Bay & River Dredging Co., 151 Cal. 209, 12 Ann. Cas. 779, 90 P. 942, 12 L. R. A., N. S., 267, Billig v. Southern P. Co., 189 Cal. 477, 209 P. 241, and by the Federal supreme court in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 255, 53 L.Ed. 480. In Teller v. Bay & River Dredging Co., supra, the dredging company rented a ditcher and crew to private parties for a consideration of $ 70 per day. The private parties, aside from designating the character and location of the work to be done, as was the case here, had nothing else to do with the operation. It was held that the crew were employees of the dredging company. In Standard Oil Co. v. Anderson, supra, the company had contracted with a stevedore to load one of its ships. A steam winch and drum belonging to the company, together with an operating winchman were furnished by the company, the stevedore agreeing to pay the company so much per thousand for the hoisting. Holding that the winchman was the employee of the company and not of the stevedore, the court said:

"For reasons satisfactory to it, the defendant preferred to do the work of hoisting itself, and received an agreed compensation for it; the power, the winch, the drum and the winch-man were its own. It did not furnish them, but furnished the work it did for the stevedore. That work was done by the defendant, for a price, as its own work by and through its own instrumentalities and servants, and under its own control."

To the same effect is Driscoll v. Towle, 181...