Peterson v. Department of Labor and Industries of Washington

• Decision Date: 23 January 1931
• Docket Number: 22919.
• Parties: PETERSON v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

295 P. 172

160 Wash. 454

PETERSON v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 22919.

Supreme Court of Washington

January 23, 1931

Department 2.

Appeal from Superior Court, Stevens County; J. A. Fraler, Judge.

Proceeding under the Industrial Insurance Act by Erick W. Peterson claimant, opposed by the Department of Labor and Industries. An order of the Department, refusing an award, was reversed by the superior court, which gave judgment for claimant, and the Department appeals.

Reversed and remanded, with directions.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for appellant.

W. Lon Johnson, Wentz & Bailey, and F. Leo Grinstead, all of Colville, for respondent.

MILLARD J.

The claim of Erick W. Peterson for compensation under the Industrial Insurance Act for injuries sustained while engaged in the construction of a logging road in Stevens county was disallowed by the department of labor and industries. Peterson appealed to the superior court, which reversed the order of the department and entered judgment in the claimant's favor. The department has appealed from that judgment.

Appellant contends that respondent was injured while engaged in a joint adventure with Glenn Baird; therefore the department correctly rejected the claim.

The only testimony in the record is that of the respondent and it is, substantially, as follows:

At the time respondent was injured he and Glenn Baird were owners in common of the northwest quarter of a certain section of timber land in Stevens county. Baird owned an undivided two-thirds interest, and Peterson owned an undivided one-third interest in the tract. For the purpose of removing the timber therefrom, respondent, Glenn Baird, and Eldo Baird (who was employed and paid by his brother Glenn Baird) began October 18, 1926, the construction of a logging road on the land. It was agreed that the contribution of services of each in the construction of the road should be in proportion to the interest of each in the land. As Baird's interest of two-thirds was twice that of the respondent's, Baird employed and paid his brother Eldo Baird to assist him and respondent in clearing the right of way for the road. The three men were continuously engaged from that time in the construction work until October 22d, on which date Glenn Baird went to Spokane to purchase a quarter section of timber land adjoining the quarter section he and respondent owned. On the same day Eldo Baird resigned. On Glenn Baird's return the next day, October 23d, the resignation of his brother was called to Glenn Baird's attention. Baird then agreed to pay respondent for his services according to the interests of the two parties in the property.

'When Mr. Baird came back I asked him where his brother was and he stated that he went to work for Mr. Corr and the difference in the wages was in the interest.

'Q. In other words, he would pay you the difference for your labor on the ratio of your interest in this land? A. Yes.

'Q. On what date did you start work on this road? A. On the 18th day of October. Me and Mr. Baird and a man Mr. Baird had with him to represent this other third interest.

'Q. There was a definite understanding that he was to pay you so much a day? A. Yes.

'Q. How much? A. The going wage.

'Q. No figure set? A. No.'

Pursuant to the foregoing agreement respondent and Glenn Baird were engaged from October 23d to the 28th, five days, in clearing the right of way for the road. On October 28th, while thus employed, respondent was injured by a blast of dynamite. Some time in May, 1927, Glenn Baird gave to the respondent a check for $20 in full payment of the work performed by the respondent from October 23d to 28th, inclusive. No pay rolls were ever furnished to the department, nor was it ever notified of respondent's employment.

Respondent contends that he and Baird were not partners; that he is not claiming as an individual employer or as a member of a partnership employer; that he was an employee of Glenn Baird therefore he is entitled to compensation, and section 1, c. 136 p.

384, Laws of 1923, and section 2, c. 182, p. 722, Laws of 1921, reading as follows, are not applicable:

'In all cases where partners or other persons are excluded on the payroll such statements shall state both the names and occupations of the parties excluded and no such persons shall be entitled to compensation unless notice in writing that such excluded person has been included is received by the department prior to the date of injury to such person. Such employer shall at the time of reporting his payroll also state the names and addresses of any contractor or subcontractor operating for or under him.' Section 1,

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