Norman v. Department of Labor and Industries

• Decision Date: 23 August 1941
• Docket Number: 28295.
• Citation: 10 Wn.2d 180,116 P.2d 360
• Parties: NORMAN et al. v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

116 P.2d 360

10 Wn.2d 180

NORMAN et al. v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 28295.

Supreme Court of Washington

August 23, 1941

Department 2.

Proceeding under the Workmen's Compensation Act wherein Fred L Norman and others filed claims against the state medical aid fund for services rendered to Merle F. Norman, deceased, on account of injuries allegedly sustained by deceased in extra-hazardous employment. From a judgment of the Superior Court reversing an order of the joint board of the Department of Labor and Industries rejecting the claims, the Department of Labor and Industries appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

Smith Troy and Edward S. Franklin, both of Olympia, for appellant.

Dillard & Powell and F. M. O'Leary, all of Spokane, for respondents.

SIMPSON Justice.

July 21, 1939, Merle F. Norman was injured while burning poison ivy upon land owned by Spokane county.

July 31, 1939, he filed a report of the accident with the department of labor and industries. In the report he claimed that he had received burns while spraying poison ivy, and that the 'hose came off burner and sprayed him with gasoline and he caught fire.'

September 13, 1939, the department rejected his claim for the following reasons: '(1) for the reason that the claimant at the time of alleged injury was not engaged in work classified as extrahazardous and coming under the compulsory provisions of the Workmen's Compensation Act, and (2) that claimant was an independent contractor and was not including himself or reporting his monthly payroll to the Division of Industrial Insurance.'

The workman appealed to the joint board and a rehearing was granted.

Before the appeal could be heard, Mr. Norman died from the effects of his injuries October 10, 1939.

Thereafter various physicians, nurses, hospitals, and others who had rendered services to the workman on account of his injuries care and funeral expenses, filed claims against the state medical aid fund. These claims were rejected by the supervisor of industrial insurance, whereupon the claimants appealed to the joint board which granted the petition for a rehearing.

Hearing was had and the joint board sustained the action of the supervisor. The claimants then appealed to the superior court.

The trial to the court sitting without a jury resulted in a judgment reversing the joint board, and requiring it to entertain and allow the claims for the services rendered. The department has presented this appeal.

The assignments of error are directed against the court's findings and judgment.

The facts are these: Spokane county owned several lots within the city of Spokane upon which was growing poison ivy or poison oak. The officials in charge of the lots decided to clear them of the poisonous growth and asked Mr. Norman if he could eradicate it. Upon receiving an affirmative answer, an oral contract was entered into which may best be shown by quoting the testimony of C. E. Carey, the county land agent:

'A. In substance the agreement was that this Mr. Merle Norman was to eliminate or eradicate certain poisonous weeds--I presume it was poison ivy or oak--from these County-owned lots for a consideration of $50.00.

'Q. What conversation did you have with Mr. Norman pertaining to the contract? A. The conversation was that the eliminating of the poisonous weeds was something that I was not familiar with, and I asked Mr. Norman if he understood the risk of getting infection from handling the stuff and working with it that he would be taking. He said he was thoroughly familiar with it and knew exactly how to get rid of it. So I asked him how he would do it and he said 'I'll scorch or burn the leaves so that I won't get infected with it and then I'll grub the roots out with a grubbing hoe or whatever means necessary to get it out.' I again--from my own overcautiousness with that kind of things, I guess--warned him to be careful about getting an infection. He rather laughed at the idea, said he was familiar with that kind of work as he had done it Before . So I told him to clear the land off and make out his bill and bring it in. I would present it to the Commissioners and he would be paid by the County.'

The system which Mr. Norman employed while clearing the ground is not disclosed by the evidence. The only manner shown concerning the method of work is that he used gasoline in the burning process, and that it exploded and injured him.

Appellant argues that Mr. Norman was an independent contractor and, as such, did not come under the protection of the industrial insurance act.

The act was amended by § 2, chapter 211, Laws of 1937, Rem.Rev.Stat. (Sup.), § 7674-1 [P.C. § 3469d], to read as follows: 'The term workman within the contemplation of this act means every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his personal labor for any employer coming under this act whether by way of manual labor or otherwise in the course of his employment.'

In 1939, the legislature added another amendment, § 2, chapter 41, Laws of 1939, Rem.Rev.Stat. (Sup.), § 7675 [P.C. § 3470] which is: 'Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or...