Mulanix v. Falen

• Court: Idaho Supreme Court
• Writing for the Court: GIVENS, C. J.
• Citation: Mulanix v. Falen, 64 Idaho 293, 130 P.2d 866 (Idaho 1942)
• Decision Date: 04 November 1942
• Docket Number: 7031
• Parties: DOWELL MULANIX, Employee, Respondent, v. ERNEST FALEN, Employer, and IDAHO COMPENSATION COMPANY, a corporation, Surety, Appellants

130 P.2d 866

64 Idaho 293

DOWELL MULANIX, Employee, Respondent, v. ERNEST FALEN, Employer, and IDAHO COMPENSATION COMPANY, a corporation, Surety, Appellants

No. 7031

Supreme Court of Idaho

November 4, 1942

WORKMEN'S COMPENSATION-INDEPENDENT CONTRACTOR-CASUAL EMPLOYMENT-AGRICULTURAL EMPLOYMENT.

1. In workmen's compensation proceeding, evidence that claimant was employed by fruit grower to drive truck in delivering fruit to markets, that he purchased truck and leased its use to a grower under arrangement for payment of day wages to claimant, and receipt of certain percentage of truck's earnings by grower, that claimant was injured when truck was wrecked during trip to market for grower with load of peaches purchased by him, and that grower retained right to hire and fire claimant at any time and gave specific directions as to such trip so far as possible, justified Industrial Accident Board's conclusion that claimant was not "independent contractor."

2. Intermittent employment of truck owner by fruit grower and seller to drive truck in delivering fruit to markets was not casual within exception of "casual employment" from coverage of Workmen's Compensation Act.

3. There was no "joint venture" between fruit dealer and truck owner, intermittently employed by grower to drive truck in delivering fruit to markets, at time of his injury in wreck of truck while hauling peaches for such dealer, but relationship of "master and servant" existed between them within Workmen's Compensation Act.

4. The Industrial Accident Board was justified in concluding that delivery of peaches, necessitating trip of several hundred miles, by truck driver for his employer, a fruit grower, and dealer, who did not raise such peaches but purchased them for resale, was not "agricultural employment" within exception from coverage of Workmen's Compensation Act.

Appeal from the Industrial Accident Board.

Appeal from award made in favor of claimant. Affirmed.

Order affirmed. Costs awarded to respondent.

Ralph S. Nelson and Spencer Nelson for appellants.

A contractor hauling fruit for various parties making a trip to carry peaches owned by appellant 24 hours after making a trip for another fruit ranch is engaged in irregular employment being "casual employment" and is not covered by the Idaho Compensation Act. (Orr v. Boise Cold Storage, 52 Idaho 151, 12 P.2d 270; Rabideau v. Cramer, 59 Idaho 154, 81 P.2d 403; Dawson v. Joe Chester Artificial Limb Company, 62 Idaho 508, 112 P.2d 494; I. C. A 43-904.)

An employer growing and selling his own fruit and other agricultural products and transporting the same and selling it is engaged in "agricultural pursuits" even though he supplements his own products with other agricultural produce purchased elsewhere. (Kimball v McBirney, 52 Idaho 65, 11 P.2d 370; Cook v Massey, 38 Idaho 264, 220 P. 1088; Carstons Packing Company v. Industrial Accident Board, Idaho , 123 P.2d 1001; Smythe v. Phoenix, Idaho , 123 P.2d 1010; Big Wood Canal Company v. Unemployment Compensation Division I. A. B., 61 Idaho 247, 100 P.2d 49.)

Dunlap & Dunlap for respondent.

The word casual as used in Sec. 43-904, I. C. A., applies to the employment and not to the employee, and one who has been steadily employed for more than a year by the same man, doing the same work, is not in casual employment. (Rabideau v Cramer, 59 Idaho 154, 81 P.2d 403; Dillard v. Jones, 58 Idaho 273, 72 P.2d 705; Flynn v. Carson, 42 Idaho 141, 243 P. 818.)

An occupation or pursuit as a whole is the controlling factor, in determining whether an employee is engaged as a farm laborer, or in an agricultural pursuit. (Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13.)

GIVENS, C.J. Budge, Holden, and Ailshie, JJ., concur.

OPINION

GIVENS, C. J.

Respondent, whose occupation was designated as truck driver, had worked for appellant Falen in that capacity more or less continuously since July, 1940. The employer has a 120-acre ranch near Wilder, where he raises fruit and produce and sells it at different markets both within and without the state, delivering by truck. He also buys fruit and produce, which he likewise delivers. Respondent was employed to drive trucks for such deliveries. Shortly prior to August 24, 1942, respondent purchased a truck and arranged to lease its use to appellant on this basis: appellant was to take care of all expenses in connection with the operation of the truck and receive 10% of the earnings of the truck, pay respondent as driver $ 5.00 a day wages, the balance of the earnings of the truck to be paid on the purchase price to the finance company, the truck when paid for to belong to respondent.

Just prior to August 24, 1942, respondent had, while on vacation from employment by appellant Falen, with this truck hauled a load of fruit for one Sims, receiving 45c a basket. Appellant paid social security on respondent and secured the required state permit to haul through Montana on the trip in question. August 23, 1942, respondent left with a load of peaches for appellant Falen, purchased not produced by him, for delivery to Gamble-Robison in Sheridan, Wyoming. Falen was to receive 55c per bushel for the haulage of the peaches, evidently to be apportioned between Falen and respondent under the above arrangement as to the purchase and use of the truck. The fruit was perishable and had to be delivered without stop for rest or sleep, only for meals and refueling. At Bozeman, Montana, respondent, being tired and sleepy and wanting...