Stout v. State Ind. Acc. Comm.
| Citation | 172 Or. 346,141 P.2d 972 |
| Parties | STOUT <I>v.</I> STATE INDUSTRIAL ACCIDENT COMMISSION |
| Decision Date | 19 October 1943 |
| Court | Oregon Supreme Court |
Tests of independent contractor relationship in the field of
workmen's compensation, note, 134 A.L.R. 1029. See, also, 28
R.C.L. 762
71 C.J., Workmen's Compensation, § 167
Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Josephine County.
Proceeding under the Workmen's Compensation Act by Clarence R. Stout, claimant, for loss of his right hand caused by accidental contact with a dado saw with which he framed some timbers for intervenor, Eugene R. Brown. From a judgment awarding compensation, the State Industrial Accident Commission and intervenor appeal.
REVERSED.
Walter H. Evans, Jr., Assistant Attorney General (I.H. Van Winkle, Attorney General, and C.L. Marsters, Assistant Attorney General, of Salem, on the brief) for appellant State Industrial Accident Commission.
Porter J. Neff, of Medford (Neff & Frohnmayer, of Medford, and W.T. Miller, of Grants Pass, on the brief) for intervenor and appellant.
George M. Roberts, of Medford (O.S. Blanchard, of Grants Pass, on the brief) for respondent.
The decisive question here is whether the record presents substantial testimony to prove that within the meaning of the Workmen's Compensation Act, at the time plaintiff sustained the injury to his hand and arm, he was a workman employed by the intervenor Brown.
The section of the statute defining the terms employer and workman, consists of two paragraphs. Paragraph 1 thereof is as follows:
"The term `employer', used in this act, shall be taken to mean any person, including receiver, administrator, executor or trustee, who shall contract for and secure the right to direct and control the services of any person, and the term `workman' shall be taken to mean any person who shall engage to furnish his or her services, subject to the direction and control of an employer."
The second paragraph of said section is as follows:
"If any person engaged in a business and subject to this act as an employer, in the course of such business shall let a contract the principal purpose of which is the performance of labor, such labor to be performed by the person to whom the contract was let or by such person with the assistance of others, all workmen engaged in the performance of the contract shall be deemed workmen of the person letting the contract, if the person to whom the contract was let was not engaged in a separate business involving the occupation covered by the contract at the time of commencing the performance of the contract." Section 102-1703, O.C.L.A. Vol. 7, p. 623.
During the time involved in this proceeding, Mr. Brown, the intervenor, was operating a chrome mine in California, located about twenty-five miles west of O'Brien, Oregon, and about six miles south of the Oregon-California line.
The plaintiff was associated with Mr. Nixon in operating a placer gold mine known as the Esterly mine located about four miles east of O'Brien, in Josephine county, Oregon, near the California line. Mr. Nixon had leased that mine from Mr. Hales, the owner, who resides in Chicago, Illinois. A part of the equipment of the Esterly mine consisted of a woodworking plant and shop which was operated by water power. A dado saw and a cut-off saw comprised a part of this woodworking plant.
The evidence discloses that sometime early in September, 1941, Mr. Brown sought plaintiff and told him that he, Brown, had been having timbers framed by hand and suggested that by the use of the machinery at the Esterly mine such framing could be done for less than it had been costing.
We quote from plaintiff's testimony:
"Q. What, if anything did Mr. Brown say to you?
A. Mr. Brown said that he had been framing timbers by hand, and recalled that we had some machinery there that might do the job cheaper than the way he had been doing it, and was interested to know whether I could do them or not. I told him that I thought that I could, but that I would need a helper to assist. I thought they were too heavy to handle alone. Mr. Brown was interested in the cost, whether it would be cheaper than the way he had been doing it by hand. I told him that I thought no matter how we handled it the power machinery would be cheaper than the way he had been doing. Then he wanted to know the price per piece. I told him that was impossible. I didn't know what the price per piece would be, doing it that way, but that I would work for One Dollar ($1.00) an hour and fifty cents per helper, which I could get for him. * * * * *
Q. Well was there anything said relative to repair of the equipment?
A. Yes, I stated the repair of the equipment was in bad repair and that would have to be repaired, and he agreed that we — Mr. Babcock and I should repair the machinery on an hourly basis. I told him the price per piece couldn't be determined until I ran a number of pieces but that I might do them by the piece later on or by the hour. He said he was satisfied either way would be cheaper than the way he had been doing and that was more or less the way the price was left."
Plaintiff testified further that Mr. Brown then said that "we would go ahead on that basis until we could see what the price per piece actually was."
The plaintiff, Mr. Stout, testified that he thought the owner of the machinery would have had no objection to any one using it who would put it in repair. There is no testimony to the effect that either plaintiff or his partner Mr. Nixon, or any one else, had authority from the owner, Mr. Hales, to permit any one not in their service or under...
To continue reading
Request your trial
-
Butts v. State Indus. Acc. Commission
...the findings of fact of the trial court so long as they are supported by substantial evidence. * * *' And see Stout v. State Industrial Accident Comm., 172 Or. 346, 141 P.2d 972. Under the statute, the term 'workman' means 'any person who shall engage to furnish his or her services, subject......