Taylor v. Blackwell Lumber Co.

• Decision Date: 10 August 1923
• Citation: 37 Idaho 707,218 P. 356
• Court: Idaho Supreme Court
• Parties: A. L. TAYLOR, Respondent, v. BLACKWELL LUMBER COMPANY, a Corporation, V. A. FINROW and THE ASSOCIATED EMPLOYERS' RECIPROCAL, Appellants

218 P. 356

37 Idaho 707

A. L. TAYLOR, Respondent, v. BLACKWELL LUMBER COMPANY, a Corporation, V. A. FINROW and THE ASSOCIATED EMPLOYERS' RECIPROCAL, Appellants

Supreme Court of Idaho

August 10, 1923

WORKMEN'S COMPENSATION LAW - HEARINGS - DEPOSITIONS - IMPEACHING TESTIMONY-APPEALS FROM INDUSTRIAL ACCIDENT BOARD TO DISTRICT COURT-SPECIFICATIONS OF ERROR-INDEPENDENT CONTRACTOR-CONFLICTING EVIDENCE.

1. A hearing before a member of the industrial accident board on a claim filed under the workmen's compensation law should be full and complete, and the board should not permit a second hearing except on a very strong showing.

2. Depositions of character witnesses, taken many months after the testimony sought to be impeached had been given, were properly rejected.

3. One who appeals from an award of the industrial accident board to the district court should specify the errors, committed by the board, upon which he relies.

4. It is the duty of the industrial accident board to determine the ultimate fact whether the claimant is an employee or an independent contractor, and when there is a conflict in the evidence this court will not disturb the findings of the board, provided there is substantial evidence to sustain them.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Judgment affirming award of industrial accident board in favor of claimant, from which defendants appeal. Judgment affirmed.

Judgment affirmed. Respondent recovered his costs.

Ezra R Whitla and R. S. Nelson, for Appellants.

Persons logging at so much per thousand have almost uniformly been held to be independent contractors. (Young v. Fosburg Lumber Co., 147 N.C. 26, 60 S.E. 654, 16 L. R. A., N S., 255; Gay v. Roanoke Lumber Co., 148 N.C. 336, 62 S.E. 36; Abbott v. Sumpter Lumber Co., 93 S.C. 131 76 S.E. 146; Easter v. Hall, 12 Wash. 160, 40 P. 728; Carter v. Berlin Mills, 58 N.H. 52, 42 Am. Rep. 572; Kieldsen v. Wilson, 27 Neb. 158, 42 N.W. 1054; Sparks v. Cresson Lumber Co., 40 Tex. Civ. 222, 89 S.W. 423; Jackson v. Downes (Tex. Civ.), 149 S.W. 286.)

The right to terminate the contract does not control. (Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36; Dayton v. Free, 46 Utah 277, 148 P. 408; Scales v. First State Bank, 88 Ore. 490, 172 P. 499.)

The fact that the logs had to be measured so that the number of feet could be determined, or that Finrow might have any general supervision of the work, is immaterial. (Donlon Bros. v. Industrial Acc. Com., 173 Cal. 250, 159 P. 715; Buckingham v. Commary-Peterson Co., 39 Cal.App. 154, 178 P. 318; Bacon v. Candler, 181 Mich. 372, 148 N.W. 194; Burns v. Michigan Paint Co., 152 Mich. 613, 116 N.W. 182, 16 L. R. A., N. S., 816; Barton v. Studebaker, 46 Cal.App. 706, 189 P. 1025.)

Furnishing the tools has no bearing on the question. (Stricker v. Industrial Acc. Com., 55 Utah 603, 188 P. 849.)

There is no evidence to show the claimant was an employee. All the evidence shows him to be an independent contractor. ( Houghton v. Loma Prieta Lumber Co., 152 Cal. 574, 93 P. 377.)

This court in reviewing the evidence will consider only that evidence which is competent, relevant and material under the rules applicable to trial courts. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)

James F. Ailshie and James F. Ailshie, Jr., for Respondent.

On appeal from an award of the industrial accident board to the district court, the appellant must make formal specification or assignment of errors, and when such is not done there is nothing properly before this court on appeal from the district court. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068.)

A specification of error which goes to the sufficiency of the evidence, but which does not point out wherein or in what particular the evidence is insufficient, will not be considered. (State v. Maguire, 31 Idaho 24, 169 P. 175; Citizens' Right of Way Co. v. Ayers, 32 Idaho 206, 179 P. 954; Weber v. Pend d' Oreille Mining Co., 35 Idaho 1, 203 P. 891; Hawkins v. Smith, 35 Idaho 349, 205 P. 188; State v. Sims, 35 Idaho 505, 206 P. 1045.)

On appeal under the workmen's compensation law the jurisdiction of the district and supreme courts is limited to a review of questions of law, and the findings of the industrial accident board will not be set aside if there is any evidence to support them. (C. S., sec. 6270; McNeil v. Panhandle Lumber Co., supra; Swift & Co. v. Industrial Com., 287 Ill. 564, 122 N.E. 796; 2 Schneider, Workmen's Compensation Law, p. 1524; Industrial Com. v. Big Six Coal Co. (Colo.), 211 P. 361; Associated Employers' Reciprocal v. State Industrial Com. (Colo.), 211 P. 491; Industrial Com. v. Irvine (Colo.), 212 P. 829; Staley-Patrick Drilling Co. v. State Industrial Com., 88 Okla. 260, 212 P. 1006; Haskell & Barker Car Co. v. Brown, 67 Ind.App. 178, 117 N.E. 555, 18 N.C. C. A. 232; Walker's Case (Mass.), 137 N.E. 171; Donnelly's Case (Mass.), 137 N.E. 696; Chicago, M. & St. P. Ry. Co. v. Chinne (Ind.), 137 N.E. 855.)

The doctrine of independent contractor is peculiar to the law of negligence and has no proper place in or application to the workmen's compensation law. (C. S., sec. 6321; 2 Schneider, Workmen's Compensation Law, sec. 533, p. 1439; McDowell v. Duer (Ind. App.), 133 N.E. 839.)

Where no affirmative reason is given as to why certain rulings complained of are erroneous, the court will not consider such alleged error. (State v. Mushrow, 32 Idaho 562, 185 P. 1075.)

A question not raised upon the trial cannot be urged on appeal. (3 C. J., sec. 636, p. 742; Darby v. Heagerty, 2 Idaho 282, 13 P. 85; 3 C. J., sec. 730, p. 808; Simoneau v. Pacific Electric Co., 166 Cal. 264, 136 P. 544, 49 L. R. A., N. S., 737; Shields v. Hanbury, 128 U.S. 584, 9 S.Ct. 176, 32 L.Ed. 565; Hurt v. Monumental Mercury Mining Co., 35 Idaho 295, 206 P. 184.)

The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is enjoyed by an independent contractor, and hence no single fact is more conclusive of the relation of master and servant than the unrestricted right of the employer to terminate the employment at will. (14 R. C. L., p. 72, sec. 9; Cockran v. Rice, 26 S.D. 393, Ann. Cas. 1913B, 570, 128 N.W. 583; Helmuth v. Industrial Acc. Com., 59 Cal.App. 160, 210 P. 428; Muncie Foundry & Machine Co. v. Thompson, 70 Ind.App. 157, 123 N.E. 196; Press Pub. Co. v. Industrial Acc. Com. (Cal.), 210 P. 820; Bodwell v. Webster, 98 Neb. 664, Ann. Cas. 1918C, 624, 154 N.E. 229; Arizona-Hercules Copper Co. v. Crenshaw, 21 Ariz. 15, 184 P. 996; Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818, 20 N.C. C. A. 902; Bristol & Gale Co. v. Industrial Com., 292 Ill. 16, 126 N.E. 599; 1 Thompson on Negligence, sec. 579; Williams v. National Cash Register Co., 157 Ky. 836, 164 S.W. 112; Columbia School Supply Co. v. Lewis, 65 Ind. 339, 116 N.E. 1; Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, Ann. Cas. 1918C, 664, 158 N.W. 875.)

It is the right on the part of the employer to control the method of conducting the work, and not his actual interference, which makes the difference between an independent contractor and a servant or agent. (14 R. C. L., sec. 3, p. 68; Carter Coal Co. v. Howard, 169 Ky. 87, 183 S.W. 244; Amalgamated Roofing Co. v. Travelers Ins. Co. (Ind.), 133 N.E. 259.)

Compensation laws should be liberally construed in favor of the injured workman. (McDowell v. Duer, supra; McNeil v. Panhandle Lumber Co., supra.)

WM. E. LEE, J. McCarthy and Dunn, JJ., concur.

OPINION

WM. E. LEE, J.

--On April 7, 1921, while engaged in skidding certain logs belonging to the Blackwell Lumber Company, in Kootenai county, for V. A. Finrow, who had a logging contract with that company, A. L. Taylor, a man fifty-four years of age, was struck and knocked down by a log and caught beneath other logs which rolled on him, resulting in a fracture of the pelvis and other serious injuries to and about his right hip. At the time of the injury he was being assisted by his little daughter, thirteen years of age. After waiting until help could be summoned from a distance of three or four miles, the logs were taken away and the injured man was carried to his home, where he was practically helpless until about September, 1921, and he had not fully recovered in June, 1922.

In December, 1921, Mr. Taylor filed a claim for compensation under the workmen's compensation law, against the Blackwell Lumber Company and V. A. Finrow, and a hearing was held before a member of the industrial accident board on February 8, 1922, at Coeur d'Alene. The defendants attempted to demur to the claim for compensation, but the demurrer was not entertained by the commissioner. The defendants thereupon dictated into the record an answer in which it was denied that claimant was an employee of the defendants, or either of them, and it was alleged that he was an independent contractor. At that time the claimant, Mrs. Mamie Taylor, his wife, Mrs. Naomi Becker, an employee of the Coeur d'Alene Grain & Milling Company, Fred LaFrenz, who helped roll the logs off claimant when he was injured, Dr. D. D. Drennan, the physician who attended claimant in his injuries, Carl Lundgren, an employee of the Blackwell Lumber Company, and V. A. Finrow testified for and in opposition to the claim, and certain documentary evidence was admitted. Thereafter, Commissioner Duffy, of the industrial accident board, dismissed the proceeding against the Blackwell Lumber Company and made findings of fact and rulings of law in favor of claimant and against V. A. Finrow. An award was thereupon entered on March 31, 1922, in favor of claimant and against V. A. Finrow and the Associated...