Wilcox v. Swing

• Decision Date: 02 May 1951
• Docket Number: No. 7669,7669
• Citation: 71 Idaho 301,230 P.2d 995
• Parties: WILCOX v. SWING et al.
• Court: Idaho Supreme Court

Page 995

230 P.2d 995

71 Idaho 301

WILCOX v.SWING et al.

No. 7669.

Supreme Court of Idaho.

May 2, 1951.

Ben Peterson, Pocatello, T. Quentin Cannon, Salt Lake City, Utah, for appellant.

E. B. Smith, Boise, for respondents.

PORTER, Justice.

On an undisclosed date prior to August 2, 1948, respondent, D. T. Swing, and George A. Wilcox, deceased, entered into a contract of employment reading as follows:

'Contract of Employment

'G. A. Wilcox agrees:

'To rent Compressor, Stoper, Steel, Hose and Water Tank, and haul equipment to property from present point of origin.

'Run drift 75 feet, (or less if pay ore in shipping quantities is contacted.

'All tools and equipment received off the property to be returned to point of origin at completion of contract at option of D. T. Swing.

'If G. A. Wilcox abandons work on property before contact is completed by extending the tunnel the full 75 feet or until pay ore is contacted then said G. A. Wilcox shall forfeit any claim to any future profits of said mine which shall have been made after such abandonment.

'To furnish all labor for 75 feet,

'D. T. Swing agrees:

'To pay G. A. Wilcox $800.00

'To furnish all gasoline and bits for drilling.

'To furnish all powder, caps and fuse.This to be received at the lake.

'G. A. Wilcox to receive after contact is made, not less than 15% of the net profits of operation of the property.

'It is agreed and understood that Mr. G. A. Wilcox, is, at his option and with the concurrence of D. T. Swing to manage the mining and development of said property when contact is made, at a salary to be agreed upon by himself and D. T. Swing.

'D. T. Swing

'G. A. Wilcox'

On August 2, 1948, pursuant to such contract, deceased Wilcox commenced work extending a tunnel in the Alturas Mine in Blaine County.About one hour after he began work, deceased was accidentally and fatally injured by carbon monoxide poisoning.

Thereafter, the claimant, Ethel Dunn Wilcox, widow of deceased, duly filed her claim for Workmen's Compensation with the Industrial Accident Board.An answer was filed by respondents and the matter was set for hearing.At the hearing no evidence was introduced.The parties stipulated the facts.They further stipulated that the only issue before the Industrial Accident Board for decision was whether deceased Wilcox, at the time of his death, was an employee of D. T. Swing within the contemplation of the Idaho Workmen's Compensation Act.I.C. § 72-101 et seq.The Industrial Accident Board found that the relationship between respondent Swing and deceased Wilcox was that of contracting principal and independent contractor, and not that of employer and employee.The board issued an order denying compensation.From such order appellant has duly appealed to this court.

In the recent cases of Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884;Ohm v. J. R. Simplot Co., 70 Idaho 318, 216 P.2d 952;andNixon v. Webber-Riley Lumber Co., 71 Idaho ----, 229 P.2d 997, this court discussed the various tests for determining whether a contract creates the relationship of employer and employee or principal and independent contractor.We recognized that the general test as to whether a party to a contract is an employee or independent contractor is whether the other party has the right to control and direct the details of the work to be performed and to say whether the work shall stop or continue.In such caseswe also recognized a number of factors which are to be considered in determining whether there exists such right to control the details of the work and to say when such work shall cease.

An examination of the contract in this case discloses that deceased undertook to do a definite amount of work, that is, to run the tunnel until pay ore was struck, or to a distance of 75 feet.That his pay was to be $800.00 for the completed job together with additional emoluments if pay ore were struck.That deceased was to hire and pay his own employees.That deceased was to furnish his own tools by renting the same from respondent Swing.That deceased could not be discharged without penalty and that if he abandoned the work he would suffer a forfeiture.That deceased could govern his own hours of work, and that respondent Swing was interested only in the result of the work and not as to the means whereby it was to be accomplished.All the foregoing plainly indicate that respondent Swing had no power to control the details of the operation and to say whether the work should stop or go forward.The contract in question, viewed in the light of the recognized tests, shows that the relationship between the parties was that of contracting principal and independent contractor.

However, appellant urges that the true relationship between the parties is to be determined not only from the contract, but from the conduct of the parties in relation thereto.In this connection she points out that respondent Swing purchased a Surety Bond from respondent, Idaho Compensation Company, under date of June 3, 1948, covering the entire liability of Swing to his employees and dependents of deceased employees under the Workmen's Compensation Law of the State of Idaho.Appellant also calls attention to the Notice of Injury and Claim for Compensation filed by respondent Swing with the Industrial Accident Board wherein under the heading of 'Report of Employer', the deceased Wilcox is named as an employee.Both the Surety Bond and the Notice of Injury and Claim for Compensation are part of the transcript in this case.

It appears to be recognized that...