White v. Department of Labor and Industries

• Decision Date: 08 March 1956
• Docket Number: No. 33114,33114
• Citation: 48 Wn.2d 470,294 P.2d 650
• Court: Washington Supreme Court
• Parties: Lucinda May WHITE, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.

Page 470

48 Wn.2d 470

294 P.2d 650

Lucinda May WHITE, Respondent, v. DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, Appellant.

No. 33114.

Supreme Court of Washington, En Banc.

March 8, 1956.

Don Eastvold, Atty. Gen Kenneth G. Burrows, Asst. Atty. Gen., for appellant.

Jack Steinberg, Seattle, for respondent.

HILL, Justice.

The question presented on this appeal is whether the essence of a particular independent contract is the personal labor of the independent contractors, within the purview of the Laws of 1937, chapter 211, § 2, p. 1030, Rem.Rev.Stat. (Sup.) § 7674-1 (cf. RCW 51.08.180, part).

The exact wording of that section of our workmen's compensation act is as follows:

'The term workman within the contemplation of this act means every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his personal labor for any employer coming under this act whether by way of manual labor or otherwise in the course of his employment.' (Italics ours.)

In four other cases we have been called upon to determine the same question. The first of those cases was Norman v. Department of Labor and Industries, 1941, 10 Wash.2d 180, 116 P.2d 360. Norman had a contract with Spokane county to eradicate poison ivy or poison oak from certain county-owned lots, for a consideration of fifty poison ivy or poison oak from certain county-owned leaves and then grub out the roots with a grubbing hoe. He used gasoline in the burning process and it exploded and burned him. He had no employees and no equipment more complicated or expensive than a grubbing hoe. This is clearly the type of contract which the legislature had in mind as representing a situation where the personal labor of the independent contractor is the essence of the contract.

In Haller v. Department of Labor and Industries, 1942, 13 Wash.2d 164, 124 P.2d 559, the plaintiff had a contract to clean a well for a Mr. Canady, for one hundred dollars. It was necessary to use a hoist and the job. Canady procured the hoist and furnished all the tools and equipment used. Haller made a deal with one Henry Overby to operate the hoist, offering him fifty per cent of the amount he, Haller, was to receive. During the progress of the work something went wrong with the hoist and the bucket fell into the well, injuring Haller. The decisive factor in the holding that the essence of Haller's contract with Canady was not Haller's personal labor was the fact that one person, unaided, could not clean out the well. That case is authority for the proposition that, where the contracting parties must know that the independent contractor cannot personally perform all the work required by the contract, the essence of the contract is not the personal labor of the independent contractor.

In Crall v. Department of Labor and Industries, 1954, 45 Wash.2d 497, 275 P.2d 903, Crall had contracted with a Mr. Sanford to haul logs for seven dollars a thousand board feet. Crall owned several logging trucks and hauled for different operators as the opportunity arose. Although Crall drove one of the trucks, he employed other drivers any of whom could have driven the logging trucks carrying the Sanford logs. Crall was injured while hauling logs under his contract with Sanford. We held that Crall's personal labor was not the essence of his contract. There were at least two reasons for so holding: (1) Where the independent contractor is engaged in the same type of contract with others and has employees who customarily do part of the work, it is contemplated by the contracting parties, unless otherwise stipulated, that the employees may be used in the performance of the contract; (2) the contract could not be performed without the use of expensive machinery or equipment, i. e., logging trucks. However, the decision was based upon the proposition that labor which can be done by others is not 'personal' as that word is used in the section of the statute we are now considering. (If 'labor which can be done by others' were changed to 'labor which it is contemplated will be done by others, in whole or in part,' this would be but a restatement of the first reason suggested.)

In Cook v. Department of Labor and Industries, 1955, 46 Wash.2d 475, 282 P.2d 265, 266, Cook had a contract with a lumber company to cut, skid, load, and haul certain timber owned by the company, for twenty-five dollars a thousand feet. Cook owned, and used in the performance of the contract, a chain saw, tractor, and truck. One person could cut, skid, and haul the timber, but it was impracticable, though perhaps not impossible, for one person to load the truck. Cook had no employees, but his wife operated the truck for part of each day to aid in the loading. Cook was injured on the job. We held that his personal labor was not the essence of his contract, and there were at least two reasons for so holding: (1) The contracting parties must have known that, as to a substantial part of the work, it would not be practicable for the independent contractor to carry out the contract without assistance, Haller v. Department of Labor and Industries, supra ; (2) the contract could not be performed unless the independent contractor furnished expensive machinery or equipment, i. e., the tractor and truck (and perhaps the chain saw should be included). However, the decision was based upon the Crall case, supra. Citing that case, we said: 'Labor that may be done by others under the contract is not personal, as the word is used in the statute.'

We are now convinced that the language of the Crall and Cook cases is too broad, and that the legislature in 1937, in adopting the section of the workmen's compensation act with which we are now concerned, had something more in mind than the protection of independent contractors in those extremely rare cases in which the party for whom the work is done requires the personal services of the independent contractor and is unwilling that any part of the work be done by someone else. We conclude that the statutory provision with which we are here concerned was intended to protect workmen (and to make contracting parties for whom the work is done responsible for industrial insurance premiums) in those situations where the work could be done on a regular employer-employee basis but where, because of the time, place, manner of performance, and basis of payment, it could be urged that the workman was an independent contractor rather than an employee. Prior to the 1937 enactment, the independent contractor, when injured, was not entitled to the protection of the workmen's compensation act and the party with whom he had contracted was excused from paying premiums. It was felt to be desirable, and rightly so, to eliminate the technical issue of whether the workman was an employee or an independent contractor by giving him protection in either situation.

The requirement that the contract of any independent contractor who comes within the purview of § 2 of the 1937 enactment must be one 'the essence of which is his personal labor' clearly indicates that it was not intended to cover an independent contractor (a) who must of necessity own or supply machinery or equipment (as distinguished from the usual hand tools) to perform the contract, the Crall and Cook cases, supra, or (b) who obviously could not perform the contract without assistance, the Haller and Cook cases, supra, or (c) who of necessity or choice employs others to do all or part of the work he has contracted to perform, the Haller and Crall cases, supra.

With the background of these four cases and their decisive features, we now turn our attention to the facts in the present case.

James Steiner was a partner in a sawmill operation. We shall hereinafter refer to the Steiner mill as though it were an entity and the contracting party, because it is so referred to generally throughout the record. The Steiner mill owned or was purchasing the timber on a certain tract of land. It had employed a man to do the falling and bucking on that particular tract, paying him eight dollars per thousand board feet.

Lucinda May White, the claimant here, and her husband, William H. White, owned a donkey engine. In January, 1951, they orally contracted with the Steiner mill to move their donkey engine onto the tract in question and to yard out and cold deck the logs, for which they were to be paid twelve dollars per thousand board feet. It was thought that it would take about two months to complete the contract.

It is conceded, for the purposes of this appeal, that the Whites were independent contractors. It was understood that they would both work, Mrs. White's duties to consist of operating the donkey engine. It is likewise recognized that, without the donkey engine, the Whites could not have performed the contract. Mrs. White testified that they were approached about doing the work because 'we had equipment.'

They moved onto the tract about February 1, 1951. After work under the contract had proceeded for approximately three weeks, the Steiner mill discharged the man who had been hired to do the falling and bucking and made inquiry of the Whites as to whether they knew of a man who could do that work. The Whites did know such a man, and the Steiner mill then agreed to pay the Whites twenty dollars instead of twelve dollars per thousand board feet for logs furnished the mill, the latter to assume responsibility for the falling and bucking. The Whites then secured a Mr. Lydey to do that work, compensating him at the rate of eight dollars per thousand board feet, which was the same amount that the Steiner mill was allowing them for the additional work under their contract.

It is to be noted that Lydey was hired and paid by the Whites, and that he had no relationship with the Steiner mill either as an employee or as an independent contractor. The Whites became employers under our...