E. T. Chapin Co. v. Scott

*569 GIVENS, J. Respondent, claiming to have been an employee of appellant E. T. Chapin Company, seeks compensation for injuries; appellants resist on the ground that .respondent was an independent contractor. The application of the law to undisputed facts raises a question of law not of fact. (Ybaibarriaga v. Farmer, 39 Ida. 361, 228 Pac. 227.) In this case the facts were stipulated and there was no dispute though possibly different inferences could be drawn. If these inferences were correct findings of fact supported by sufficient evidence the commission’s action thereon would be final, if legal conclusions, questions of law are presented for this court. The commission found in favor of appellants; the district court, on appeal, found in favor of respondent. *570 The material facts as stipulated were as follows; E. T. Chapin Company, a corporation, one of appellants, the other being such company’s surety under the Employers’ Liability Act, purchased certain poles from the White Pine Lumber Company, a corporation, at Orofino, Idaho, to be delivered to Chapin Company at Orofino and by it loaded on cars, for which purpose Bob Lamont was engaged by Chapin Company at so much per running foot graduated according to different length poles. Claimant Scott became Lament’s partner in such loading operation, performing an equal share of the labor, paying half of the expenses and receiving an equal division of the profits. (C. S., sec. 5819; 30 Cyc. 349.) While loading poles his leg was severely injured. Under the agreement between Chapin Company and Lamont, Lamont was to furnish his own equipment, though in fact he used the company’s but without the company’s knowledge. Chapin Company sent the orders as to the particular size of poles to be loaded at any one time, bills of lading, etc., to the White Pine Lumber Company, which in turn ordered the necessary cars and notified Lamont when the cars were received and what kind of poles were to be loaded. Lamont was to be responsible for demurrage. Lamont hired the Orofino Transfer Company to assist and paid it, Chapin Company being in no way responsible therefor. All checks were made to Lamont and Scott’s name did not appear in the files of Chapin Company. It was further stipulated that Chapin Company handled so-called “gypo” contracts in other places as follows: The men were placed on its own pay-rolls and were paid direct, and insurance was carried on them; such employees were also under the company’s supervision and directed in their work by the company’s foreman and the company reserved the right to discharge such workmen, and the work was done in accordance with the ideas and directions of such foreman the same as in this case except that here there was no supervision and no foreman. It was further stipulated that $135 compensation was paid under a misapprehension of claimant’s status. With reference to the comparison between the so- *571 called “gypo” contracts and the present contract the stipulation further provided that the company herein “exerted no supervision whatever over the manner in which they were loaded and were interested only in getting the cars loaded as requested, except the supervision given by the White Pine Lumber Company through its manager, Mr. Kinnie, as hereinbefore set forth.” The only supervision on the part of the White Pine Lumber Company was as stated above that” when so notified by Chapin Company they instructed Lamont what poles to load, gave him the bills of lading, ordered the ears and advised him of their arrival. Respondent urges that the doctrine of an independent contractor has no application under the Workmen’s Compensation Act, relying, on In re Fisk, 40 Ida. 304, 232 Pac. 569. That case, however, recognizes that there may be independent contractors merely holding in line with C. S., sec. 6320, that the proprietor of a business is liable for an injury to an employee of an independent contractor who is engaged in work connected with the business of the proprietor, and that under C. S., see. 6287a, both the proprietor and the independent contractor may be liable. That case does not hold that the independent contractor himself has the status of an employee of the proprietor so that he may recover compensation from his proprietor. In other words: The Fisk ease deals with the rights of an employee of an independent contractor to recover from the proprietor. Herein we are discussing the rights of an independent contractor, if such the claimant be, to recover from the proprietor. The most recent expression by this court with respect to the tests for determining the difference between an employee and an independent contractor appears in Taylor v. Blackwell Lumber Co., 37 Ida. 707, 218 Pac. 356, and may be classified as follows: Right of control, as to the mode of doing the work contracted for; power to discharge; and method of payment. Applying these tests to the stipulation, it is apparent there was no right of control or supervision retained or exercised as to the particular means or method *572 employed. The contract was for the loading of the poles of the Chapin Company and from the context of the contract it seems conclnsive that this meant the poles then belonging to the Chapin Company and purchased from the White Pine Lumber Company, and being at Orofino. This was a definite and determinable amount (Turner Trust Co. v. Gillett, 36 Ida. 344, 210 Pac. 1001), and constituted a binding contract on both parties, and the Chapin Company had no right to discharge at its will and pleasure either Lamont or Scott. (Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410.) The method of payment, while not controlling, was on a contract basis and though determined on a piece basis was for a completed job not by the day or any certain quantity. While, as stated in Taylor v. Blackwell Lumber Company, supra, no one of the tests is decisive, when taken together the conclusion is inevitable that Lamont and Scott were independent contractors and not employees. The accident board was therefore correct in its conclusion and the district court was not. The judgment is reversed and the cause remanded, with instructions to enter judgment for the appellants. Costs awarded to appellants. Budge, Taylor and T. Bailey Lee, JJ., concur. Wm. E. Lee, C. J., dissents. Petition for rehearing denied.