Sines' Estate, In re
Decision Date | 25 October 1960 |
Docket Number | No. 8938,8938 |
Citation | 82 Idaho 527,356 P.2d 226 |
Parties | In re Truman G. SINES, Sr., Deceased. Moreeta W. SINES, Surviving Widow on her own behalf and on behalf of decedent's minor dependents, Claimant-Respondent, v. Ray BRUMFIELD, Employer, and Industrial Indemnity Company, His Surety, Defendants-Appellants. |
Court | Idaho Supreme Court |
Brown & Peacock, Kellogg, for appellant.
Cope R. Gale, Moscow, for respondent.
Appellant Ray Brumfield, employer, will be referred to as the appellant.
For a time prior to and on August 2, 1959, the relationship of principal and independent contractor existed between appellant and Potlatch Forests, Inc., under a logging contract; Jay Brumfield, appellant's brother, and Truman G. Sines, Sr., were appellant's employees,--Brumfield as woods superintendent and Sines as a jammer operator.
Under a portion of his logging contract, which he deemed to be obligatory, appellant entered into an arrangement with Potlatch Timber Protective Association (hereinafter called the Association) for fire protection of timber in the area of the logging operations. Appellant testified concerning the fire plan under such arrangement, as follows:
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Dwain Space, employed by the Association as district fire warden, was the overseer in charge of the fire fighting activities in the area to which Sines was heading the early morning of August 2, 1959. It was to him that logging contractors were required to report in bringing extra men to the fire.
August 1-2, 1959, Jay Brumfield was in charge of the logging operations in the absence of appellant.
On August 2, 1959, at about 1:00 o'clock a. m., Jay Brumfield awakened Mr. and Mrs. Sines at their home. Mrs. Sines went to the door. Mr. Brumfield testified as to his conversation:
Mrs. Sines testified:
Mr. Sines then roused his two sons, members of his jammer crew, stating they had to meet Jay Brumfield at Clarkia at 2:00 o'clock, to fight fire. They traveled in a pickup truck, the father driving. When about two miles from Clarkia, the pickup ran off the road into a tree, inflicting severe injury and resultant immediate death of Sines. The area of the fire was some 20 to 25 miles further on from Clarkia.
Respondent made and filed a claim for workmen's compensation death benefits on behalf of herself and decedent's minor dependents directed against appellant employer and his compensation surety, asserting that decedent's death resulted from personal injury caused by an accident arising out of and in the course of his employment by appellant. This appellants denied, and affirmatively pleaded that decedent at the time of his death was an employee of Potlatch Timber Protective Association.
Ancillary to their defense appellants moved the Board to order the Association and its compensation surety to be made parties to the proceeding. The Board, after an investigational hearing, denied the motion.
Respondent did not, nor did anyone on her behalf (I.C. § 72-402), make claim for workmen's compensation death benefits against Potlatch Forests, Inc., or Potlatch Timber Protective Association.
Appellants' defense is to the effect that Jay Brumfield, in directing Sines to go on a special mission the early morning of August 2, 1959, to fight a forest fire, was acting as agent for the Association; that therefore, at the time of his death, Sines was not in the employ of appellant, Ray Brumfield, but was in the employ of the Association.
The Board, upon hearing the matter on its merits, found that Truman G. Sines, during the early morning of August 2, 1959, when he came to his death, was in the employ of appellant Brumfield, and that Sines had not as yet been 'loaned' to the Association.
The Board made an award of workmen's compensation death benefits in favor of respondent widow and the minor dependents of decedent Sines. Appellants have appealed therefrom.
Appellants, by their assignments of error, raise two questions, first: Insufficiency of the evidence to sustain the award, and second: Error of the Board in denying appellants' motion to join Potlatch Timber Protective Association and its compensation surety, as defendants in the proceeding.
Before one can become the employee of another, the knowledge and consent of the employer, express or implied, is required. Seward v. State Brand Division, 75 Idaho 467, 274 P.2d 993. An award of compensation depends on the existence of employer-employee relationship. Moon v. Ervin, 64 Idaho 464, 133 P.2d 933; Brewster v. McComb, 78 Idaho 228, 300 P.2d 507. Under the workmen's compensation law the relationship of employer and employee depends upon a contract of hire which may be either express or implied. Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473; Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446.
We approach the first question, whether the evidence is sufficient to sustain the award.
While the requirements of the contract were twofold, first, that appellant perform certain logging operations in causing logs to be delivered to his principal, and second, that he loan men and equipment to the Association for fire fighting purposes, nevertheless as to both such requirements appellant appears to have been contractually responsible only to his principal, Potlatch Forests, Inc.
The record is devoid of any showing of knowledge on the part of Mr. Sines that he was to be loaned by his immediate employer to the Association, and, as of the time of his death, the record fails to show the creation of any express or implied contractual relationship between Mr. Sines and either his employer's principal, Potlatch Forests, Inc., or the Association; nor had he as yet been loaned. Privity of contract at that time...
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...has at times focused on the right to control as being a significant element in determining statutory employer status. See In re Sines, 82 Idaho 527, 356 P.2d 226 (1960); Merrill v. Duffy Reed Constr. Co., 82 Idaho 410, 353 P.2d 657 (1960); State ex rel. Wright v. Brown, 64 Idaho 25, 127 P.2......
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