State v. Brown

• Decision Date: 06 July 1942
• Docket Number: 6985
• Citation: 127 P.2d 791,64 Idaho 25
• Parties: STATE OF IDAHO on the relation of Calvin E. Wright, State Auditor, Respondent, v. WALTER L. BROWN, Employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

127 P.2d 791

64 Idaho 25

STATE OF IDAHO on the relation of Calvin E. Wright, State Auditor, Respondent, v. WALTER L. BROWN, Employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants

No. 6985

Supreme Court of Idaho

July 6, 1942

WORKMEN'S COMPENSATION-STATUS OF WORKMEN-EMPLOYEE-INDEPENDENT CONTRACTOR-INJURY ARISING OUT OF CoURSE OF EMPLOYMENT.

1. Where deceased had been furnished with axes, wedges and sawing tools and directed to cut timber on a designated strip of land for a compensation of $1 per thousand board feet deceased was an "employee", not "independent contractor", within meaning of statute authorizing state to recover $1,000 for the industrial administration fund on the death of an employee who left no dependents. (I.C.A., sec. 43-1101, subd. 6, as amended by Sess. Laws, 1935, c. 147.)

2. Finding of Industrial Accident Board that deceased suffered a compensable accident and making award to state for industrial administration fund sufficiently showed intent of board to find that deceased was an employee and not an independent contractor at the time of his death, although the findings should have been more explicit.

3. In compensation proceedings, showing of payment of premiums for insurance on the particular person involved is admissible as indicative of the status being that of employee and not independent contractor.

4. Where sawyer, who with another, was assigned to a strip of land within which to cut trees, after cutting last tree and before resuming labor walked between 150 feet and 200 feet from the strip to point at which a tree cut by another crew struck and killed him, evidence sustained finding of Industrial Accident Board that accident "arose in the course of and out of the employment."

5. Where an employee, at time of injury, is doing what a man in like employment may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time, such acts do not place him outside the "course of his employment" so as to preclude compensation.

APPEAL from the Industrial Accident Board.

Appeal from award entered in favor of claimant. Affirmed.

Affirmed.

Ralph S. Nelson and Spencer Nelson for appellants.

The deceased Axel Tesdor Vidlund was a contractor and not an employee as shown by all the substantial competent evidence. (Chapin v. Scott, 44 Idaho 566, 260 P. 172. In re Fisk, 40 Idaho 304, 232 P. 569; Sections 43-1806, 43-1611, 43-1601, I.C.A. Pinson v. Minidoka Highway District, 61 Idaho 731, 106 P.2d 1020; O'Neil v Madison Lumber & Mill Co. et al, 61 Idaho 546, 105 P.2d 194; Globe v. Boise Payette Lumber Co., 38 Idaho 525, 224 P. 439; Horst v. Southern Idaho Oil Co. et al, 49 Idaho 58, 286 P. 369; Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; Hansen v Rainbow Mining & Milling Co., Ltd., 52 Idaho 543, 17 P.2d 335.)

Even if the deceased were an employee there is no substantial competent evidence that his death was caused by injuries received in and arising out of his employment. (Hawkins v. Bonner County, Idaho, 46 Idaho 739, 271 P. 327; MacKenzie v. Oregon Short Line Railroad Company, 54 Idaho 481, 33 P.2d 113; Glover v. Orofino Merc. Co. et al., 53 Idaho 339, 23 P.2d 115.)

Bert H. Miller, Attorney General, and Frank L. Benson, Assistant Attorney General, for respondent.

Any doubt as to the status of a workman must be resolved in his favor to the conclusion that he was an employee, not an independent contractor. (I.C.A., secs. 43-901 et seq., as amended; In re Black, 53 Idaho 803, 811; 71 C.J. 449, quoted with approval in above case.)

The same rule should apply in a case of death with no dependents, such as here; the amount paid the State of Idaho in such a case is compensation to the State, equally as though paid to a surviving dependent. (State v. Workmen's Comp. Exchange, 59 Idaho 256, 260.)

An independent contractor is one who contracts to produce a specified, mutually agreed final result, and is otherwise free to use his own means and methods of so doing without any control by the employer. (Joslin v. Idaho Times Pub. Co., 56 Idaho 242; Horst v. So. Idaho Oil Co., 49 Idaho 58; Bailey v. Troy and B. R. Co. (Vt.), 42 Am. Rep. 129.)

Where the right to terminate the employment at will remains with the employer, there is no independent contract. (Taylor v. Blackwell Lumber Co., supra; Pinson v. Minidoka Highway District, 61 Idaho 731.) doka Highway District, 61 Idaho 731; 1 Thompson, Negligence, sec. 579.)

And the rule is settled that an employment for an indefinite period of time or an indefinite amount of service may be terminated at any time at the "discretion of either party." ( Louisville and N. R. Co. v. Offutt (Ky.), 36 S.W. 181, 183.)

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

OPINION

GIVENS, C. J.

Deceased, Axel Tesdor Vidlund, was killed July 19, 1940, when a tree fell upon him. No claim for compensation was made within a year after his death, and the State of Idaho filed a claim for an award under subd. 6 of sec. 43-1101, I.C.A., as amended by chap. 147 of the 1935 Session Laws, on the theory there were no dependents, which sufficiently appears to be the situation. The Industrial Accident Board granted the award, and the employer and surety have appealed.

About five days before his death, deceased and Niles Hansen went to Walter L. Brown, who is engaged in the logging and lumbering business, and secured a sawing job. Mr. Brown gave them axes, wedges, and sawing tools, took them out and put them to work, their remuneration being $ 1 per thousand board feet of timber cut by them. A strip of land was laid out for deceased and Hansen upon which they were to cut certain sized trees.

Deceased and Hansen had been working together all day July 19. Other men were working on another strip 350 to 400 feet away and across a little hill. After felling their last tree, deceased and Hansen had a discussion as to where they would resume their work. Hansen stopped to fill his oil bottle, and deceased walked ahead through a draw. A tree cut by the men on the other strip fell across the hill, broke in two, one of the pieces struck deceased, and he died in a few minutes. The point at which deceased was struck was 150 to 200 feet from where he and Hansen had cut their last tree and was not within the strip upon which they had been cutting. From the point where they felled the last tree to the point where deceased was hit was in the same general direction as the point to which Hansen had started to resume their operations.

Brown, in making payment of premiums under the compensation law, had included the amount paid to sawyers.

The board found deceased was killed as a result of a personal injury by accident arising out of and in the course of deceased's employment with defendant, and ordered appellants to pay $ 1,000 into the state treasury to be deposited in the Industrial Administration Fund.

Appellants contend the board erred in not specifically finding whether deceased was an employe or an independent contractor; that the board erred in finding he was killed in the course of his employment, if he was an employe, since he was found dead away from the strip of ground on which he was to work; that the board erred in permitting and refusing to strike certain testimony relative to the payment of premiums covering deceased, among others.

The only evidence introduced indicating whether deceased was an employe or independent contractor is the following testimony of Mr. Brown:

"Q. What were the circumstances of your [Brown's] engaging him to work for you?

"A. Him and Mr. Hansen come there and stated they wanted a sawing job and I gave them tools and took them out and put them to work and that was the last I saw him.

"Q. What tools did you give them?

"A. Axes, wedges and sawing tools.

"Q. They belonged to you?

"A. Yes.

"Q. You engaged both he and Mr. Hansen at the same time?

"A. Yes.

"Q. What arrangements were made for paying their wages?

"A. I hired them on the thousand basis on that particular strip. I can't remember what we paid, all the way from $ 1.00 to $ 1.50 per thousand, the log scale.

"Q. Do you hire all your men--do you pay them by the thousand?

"A. No, just the sawyers.

"Mr. Langley: Was Mr. Vidlund hired as a sawyer?

"A. Yes, in fact that's the only kind of work he ever followed.

* * * *

"Q. Were the wages for Mr. Vidlund included on your payroll for which you paid premium? * * * *

"A. Yes, they were."

And the testimony of Mr. Hansen:

"Q. How did you determine which tree to fall?

"A. We had a strip laid out. A strip for us to saw. A certain place.

"Q. And you were instructed to fell trees of a certain kind and certain diameter? * * *

"A. No, we don't have no certain diameter. Had to keep the tops down to a certain type.

"Q. The tops. You spoke about a strip of ground. The trees within a certain strip. Explain what you mean by that. * * *

"A. A strip is just a piece of ground so wide and so long and we go on there and saw the timber. That is all there is to it. * * *

"Q. * * By whom were you paid for the services you rendered in falling this timber? * * *

"A. We was paid by Mr. Brown. * * *

"Q. And how were you paid? * * *

"A. Paid so much per thousand."

The evidence regarding appellants' contention that deceased was not killed in the course of his employment is as follows:

"Q. How far was it from the point--how far was it from where you had felled the last tree to the point Mr. Vidlund was lying at the time you found him? * * * Was it on the same tract of ground?

"A. It must have been 150 or 200 feet.

* * * *

"Q. And on the 19th of July, 1940, were you and Mr. Vidlund working within one of these strips? * * *

"A. Yes. * * *

"Q. ...