O'Niel v. Madison Lumber & Mill Co.

• Decision Date: 01 July 1940
• Docket Number: 6741
• Citation: 105 P.2d 194,61 Idaho 546
• Court: Idaho Supreme Court
• Parties: BEATRICE O'NIEL, Respondent, v. MADISON LUMBER & MILL COMPANY, a Corporation, Employer, and GENERAL CASUALTY COMPANY OF AMERICA, a Corporation, Surety, Appellants

105 P.2d 194

61 Idaho 546

BEATRICE O'NIEL, Respondent, v. MADISON LUMBER & MILL COMPANY, a Corporation, Employer, and GENERAL CASUALTY COMPANY OF AMERICA, a Corporation, Surety, Appellants

No. 6741

Supreme Court of Idaho

July 1, 1940

WORKMEN'S COMPENSATION-INDEPENDENT CONTRACTOR-EMPLOYEE-COMPENSATION-EARNINGS-EVIDENCE-INSTRUMENT PLEADED IN ANSWER.

1. The statute providing that, when defense to action is founded on written instrument and copy thereof is contained in answer or is annexed thereto, genuineness of instrument is deemed admitted unless plaintiff files an affidavit denying it, does not apply to workmen's compensation proceedings before Industrial Accident Board. (I. C. A., secs. 5-704, 43-902, 43-1003, 43-1401.)

2. Evidence that company engaged in business of repairing and remodeling buildings agreed to supply to "professional" shingler all material necessary to lay 11 squares of shingles, that shingler was to be paid $2 per square, that owner of building instructed company's manager how shingles should be laid and manager gave such instructions to shingler, and that, on day after death of shingler who fell from roof, manager gave shingler's widow a draft for a sum which read "In payment of labor" by shingler, sustained finding that shingler was not an "independent contractor" but an "employee" entitling his widow to workmen's compensation. (I. C. A., secs. 43-1408, 43-1409, 43-1413, as amended by Sess. Laws, 1937, chap. 175.)

3. Testimony of deceased employee's widow that they had been married in November, 1935, that during their marriage employee was engaged in occupation of carpentering and shingling and painting, that he was engaged in such occupation all of the year 1937, that employee worked at his occupation after they moved to another town in March, 1938 that he had steady work about time of his death on June 19 1938, and that his average weekly earnings were between $25 and $35, sustained finding that employee was employed for a year prior to his death and was earning an average weekly wage of $25. (I. C. A., sec. 43-1118, as amended by Sess Laws, 1935, chap. 129.)

APPEAL from the Industrial Accident Board.

Proceeding under the Workmen's Compensation Act by Beatrice O'Niel, claimant, opposed by the Madison Lumber & Mill Company, employer, and the General Casualty Company of America, surety. From an order awarding compensation, the employer and surety appeal. Affirmed.

Award affirmed, with costs to respondent. Petition for rehearing denied.

Verner R. Clements and E. B. Smith, for Appellants.

"An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods without being subjected to the control of his employer except as to the result of the work." (Globe v. Boise-Payette Lumber Co., 38 Idaho 525, 224 P. 439; Waston v. Hecla Min. Co., 79 Wash. 383, 140 P. 317; Horst v. Southern Idaho Oil Co., 49 Idaho 58, 286 P. 369; Joslin v. Idaho Times Pub. Co., 56 Idaho 242, 243, 53 P.2d 323.)

The mere fact that the employer reserves the right to supervise or inspect the work during its performance does not make the contractor a mere servant, where the mode and means of performance are in the control of such contractor. (Horst v. Southern Idaho Oil Co., supra; Globe v. Boise-Payette Lumber Co., supra; Litts v. Risley Lumber Co., 224 N.Y. 321, 121 N.E. 730, 19 A. L. R. 1147; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721.)

The following cases, in addition to those above cited, distinguish the principles underlying the relationship of master and servant from those of proprietor and independent contractor. (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Hansen v. Rainbow Min. & Milling Co., 52 Idaho 543, 17 P.2d 335; Shannon v. Western Indemnity Co., (Tex. Com. App.) 257 S.W. 522 (affirming 242 S.W. 774); Beach v. Velzy, 238 N.Y. 100, 143 N.E. 805 (reversing 206 A.D. 563, 201 N.Y.S. 679).)

The "average weekly wage" of a workman must be computed or arrived at by the board, by the method or manner prescribed by the Workmen's Compensation Law. (I. C. A., sec. 43-1118, as amended Sess. Laws 1935, chap. 129, p. 304; Fueling v. Farmers' Co-operative Ditch Co., 54 Idaho 326, 31 P.2d 683; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 74 P.2d 171.)

Durham & Hyatt and M. Casady Taylor, for Respondent.

There is a presumption that one performing work for the benefit of another is an employee, and the burden is upon the employer to show that he is an independent contractor. (Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148; Kelley's Dependents v. Hoosac Lbr. Co., 95 Vt. 50, 113 A. 818; McKesson-Fuller-Morrison Co. v. Industrial Com., 212 Wis. 507, 250 N.W. 396, at p. 399; Hinds v. Department of Labor and Industries, 150 Wash. 230, 272 P. 734, 62 A. L. R. 225.)

The mere showing by the company that O'Niel was to be paid by the square and not by the day did not establish the relationship of independent contractor. (Taylor v. Blackwell Lumber Co., 37 Idaho 707, at p. 720, 218 P. 356.)

The fact that O'Niel was doing ordinary shingling and that he was working under an oral contract is sufficient evidence to support the award of the commission. (Federal Mining & Smelting Co. v. Thomas, 99 Okla. 24, 225 P. 967.)

The testimony of Mrs. O'Niel as to O'Niel's average weekly wage was sufficient. (Sec. 43-1118, I. C. A., as amended by chap. 129, p. 304 of the 1935 Sess. Laws; McNiel v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)

HOLDEN, J. Ailshie, C. J., Budge and Givens, JJ., concur. Morgan, J., did not sit at the hearing nor participate in the decision of this case.

OPINION

HOLDEN, J.

--Appellant Madison Lumber and Mill Company, a Washington corporation (hereinafter called the Company), was engaged in the business of repairing and remodeling buildings at Orofino, Idaho, and Ted O'Niel was what is called a "professional" shingler. May 31, 1938, the company contracted with one Jack Crabb to remodel and recondition a building owned by him and located in the town or Orofino. The remodeling included a new shingled roof. June 19, 1938, at about 9:30 A. M., while shingling, O'Niel fell off the roof, sustaining injuries from which he died the next day. February 7, 1939, Beatrice O'Niel, his widow, filed a claim for compensation with the Industrial Accident Board. March 3, 1939, the company filed what is designated a denial of claim for compensation. April 3, 1939, claimant filed an application for hearing. Thereafter appellants filed an "Answer to Claimant's Application for Hearing," which was followed by a "Further and Separate Answer and Defense" in which it is stated O'Niel was an independent contractor and not an employee of the company; that the deceased and the company "entered into a contract . . . . whereby it was agreed that the said Madison Lumber & Mill Company would furnish all materials necessary to shingle the roof of the said Jack Crabb property and that the said Ted O'Niel would furnish all labor and tools necessary for the performance of the work and the completion of the shingling within the time limited in the general contract, for the agreed price of $ 2 per square to be paid upon the completion and the acceptance of the work; that pursuant to the agreement of the parties, the said Ted O'Niel executed his written agreement therefor in words and figures as follows, to wit:

"'Madison Lumber & Mill Co., Orofino, Idaho.

"'June 16, 1938.

"'I hereby contract to reshingle approximately eleven squares on the Jack Crabb residence for the amount of $ 2.00 per square. I will furnish all necessary labor. The Madison Lumber Company to furnish all necessary material. I also release the Madison Lumber and Mill Company from all liability and damages whatsoever in case of accident or injury suffered by myself or any of my employees while I am working on this contract.

"'(Signed) TED O'NIEL.'"

Respondent did not file an affidavit denying the genuineness and due execution of the above-quoted paper. July 7, 1939, respondent's claim for compensation was heard at Orofino. July 26, 1939, findings of fact and rulings of law were made and filed. On the same day the board awarded respondent compensation, from which award this appeal was prosecuted.

Appellants urge respondent admitted the genuineness and due execution of the above-quoted paper in that she failed to make and file an affidavit denying its genuineness and due execution, and, therefore, that she cannot recover compensation, citing section 5-704, I. C. A., of our Code of Civil Procedure, which provides:

"When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuine and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant."

Appellant contend the provisions of that section apply to proceedings before the Industrial Accident Board. It formed a part of our 1881 Practice Act. When enacted, its provisions could not have been intended to apply, and were not intended to apply and have never been applied, to proceedings before the Industrial Accident Board. Moreover, that our legislature, in the enactment of the Workmen's Compensation Law many years later, did not intend section 5-704, supra, should apply to procedure before the board is...