Idaho Times Publishing Co v. Industrial Accident Board

*723 HOLDEN, J. — For many years the Twin Falls News, a morning newspaper, and the Idaho Evening Times, have been (and still are) published at Twin Falls, Idaho. Since 1935 these newspapers had the same control and management, the same circulation manager and identical agreements with their respective motor vehicle carriers. The agreement with these carriers follows: “THIS AGREEMENT, Made this ............ day of .........................., 19........, between................................................, and Idaho Corporation, party of the first part, and................................................................ of .........................................................., Idaho, party of the second part, WITNESSETH: That for and in consideration of the mutual promises herein contained, the parties hereto agree as follows: (1) The said party of the second part agrees to deliver and distribute the newspaper published by the party of the first part on each day of the week except Sunday, from the building occupied by the .........................................., at .......................................... in the City of .........................................., County of .........................................., State of Idaho, to such persons and at such places and along such route or routes, and on such regular schedule or schedules as may be from time to time designated and furnished to him by the said party of the first part, the time of and the routes and schedules for said delivery and distribution, and the strict adherence thereto being the essence of this contract. In the event contingencies render it apparently impossible for said party of the second part to conform to said regular schedules or routes, he agrees to promptly notify the party of the first part by telephoning its mailing room, stating the facts and reasons therefor. (2) The said party of the first part agrees to pay to said party of the second part therefor the sum of .................... cents per mile for each and every mile traveled by him from the building occupied by the said party of the first part and return to.........................., over the most direct route, for the delivery and distribution of said papers under the terms hereof; that in the event said party of the second part shall deliver in excess of an average of................newspapers per mile, computed on the miles traveled from the building occupied by the party of the first part to the last delivery upon the route so designated, that the said party of the second part shall receive in addition thereto the sum of ................ cents for each delivery made on said route over and above the said average delivery per mile; less the following sums as stipulated damages for defaults and failure on the part of the party of the second part; *724 for each delay or lateness of from............to............minutes,............ CENTS, and from ............to ............ minutes, ................ cents; for each time the party of the first part for any reason hires or procures another vehicle to replace or relieve vehicle of the party of the second part, $................to $................, this being dependent upon the price said party of the first part has to pay third party for the services, to be paid weekly. (3) The said party of the second part shall make such delivery and distribution according to his own means and methods of conveyance, which' shall belong to and be in the exclusive charge and control of the party of the second part and which shall not be subject to control or supervision of said party of the first part, excepting as to the results of said work, and it is hereby expressly understood that the party of the first part does not hereby hire or rent the use of the same, or assume any liability for the use or method of use thereof. (4) This agreement may be terminated by either party at any time without notice. (5) The terms of this agreement shall not be changed, modified, altered or supplemented excepting in writing signed by the parties hereto.” June 26th, 1939, the attorney for the Industrial Accident Board rendered an opinion termed “Administrative Ruling No. 109” which the Board held in obeyance until November 14, 1940, at which time it issued “Administrative Ruling No. 185,” by which the Board held these newspapers were engaged in “Covered Employment.” Thereafter these newspapers filed a joint petition with the Board seeking a review of the above mentioned rulings. January 7th, 1941, the petition was heard by the Board. At the hearing, A1 Westergren, circulation manager of both newspapers (the only witness called) testified on direct examination: “Q. Do you know, Mr. Westergren, whether or not your motor carriers perform other services than other— than under the contracts exhibits *C’ and ‘D’ ? A. I do. Q. And for other persons ? A. For other persons. Q. What is the situation in that respect? A. They carry parcels, the majority of them, parcels for various- MR. SUPPIGER: Are you testifying from your own knowledge or information ? *725 A. From my own knowledge. MR. SUPPIGER: All right. Q. I believe you have already testified that the motor vehicle carriers and the distribution of the papers is directly under your control? A. Yes. Q. Will you proceed? A. They do carry parcels for parts companies, from their stores to various automobile shops in these towns where they enter. Q. Who pays them for that? A. The parts companies or whoever they carry the parcels for. Q. Do they perform services for other persons in addition to their route? A. I know of two of them that — Mr. Norton works for the Cloystein’s Cyclery as a mechanic and Mr. Tiner has a business of his own in the refrigeration field, repairing refrigerators. He is taking some course through the mail and is now working at that. Mr. Styles has worked at the Sav-Mor Drug Store until just recently. That is all I know of at the moment. Q. Do you know whether or not any have operated school busses? A. Yes. Mr. Tiner operated a school bus. Q. Does either of the two companies by whom you are employed as circulation manager furnish the vehicles or conveyances used by the motor vehicle carriers for your publications? A. They do not. Q. Do you as circulation manager direct or in any manner supervise the manner in which the motor vehicle carriers perform their contract or agreement? A. No. Q. Do you specify, as circulation manager of these two companies, what method must be used by the carriers in the performance of their agreement? A. No. I do not. Q. In the event that the carriers working under contracts similar to exhibits ‘C’ and ‘D’ is unable to travel *726 his route on any given date, who provides his substitute or assistant? A. He has to furnish his own assistant. Q. And that is no concern to the company? A. No. Q. Do these carriers have any duties with the two companies mentioned other than the performance of the contracts exhibits ‘C’ and ‘D’? A. No. None. Q. And their duties and the performance of their contract is limited entirely to the matters set forth in the agreements ? A. That is correct.” On cross-examination Mr. Westergren testified: “Q. Another question I would like to ask is have any of the route carriers to your knowledge operated a delivery route over approximately the same territory prior to their entering into a contract for the delivery of the publications of the two papers you represent? MR. CHAPMAN: You mean- Q. For the general public? A. The only one I could recall would be Mr. Styles. I believe he handled the Rapid Express from Twin Falls to Buhl. Q. That is substantially the same route he delivers the papers for your company ? A. No. It isn’t. Q. I believe you mentioned that one of the men was employed in a drug store part of the time ? A. Yes. Q. That was not in the capacity of a delivery man ? A. No. He was a clerk. Q. Did you say one worked in a parts house? A. No. I said he delivered parcels for a parts house. Q. The one that works in the drug store as a clerk has no other activity other than as route carrier and clerk in the drug store? A. As a matter of fact during the time he was clerking he had his brother-in-law delivering the route for him.” *727 January 23rd, 1941, the Board found: “That under the terms of the contracts existing between the petitioners and the various ‘route carriers’ the ‘route carriers’ are free from control as to the method and manner of delivering the newspapers but that it has not been shown to the satisfaction of the Board that the said ‘route carriers’ are ‘customarily engaged in an independently established trade, profession or business’ and that their service is not excepted from ‘covered employment’ as defined in Section 18-3 of the Unemployment Compensation Law.” On the same day the Board entered the following order: “WHEREFORE, IT IS ORDERED AND THIS DOES ORDER That the petitioners, Twin Falls News Publishing Company and the Idaho Times Publishing Company, and each of them, report to the Unemployment Compensation Division of the Industrial Accident Board and pay contributions on all earnings of all ‘route carriers’ who are operating under contracts like those under which Wayne Cox and Claude Norton operated except on those of such who are first shown to the satisfaction of the Industrial Accident Board to have been and will continue to be free from direction and control over the performance of their services, both in law and in fact; and are customarily engaged in an independently established trade, profession or business.” The appeal to this court is from that order. Section 19, Chap. 187 (1937 S. L. p. 317) provided: “[5] Services performed by an individual for wages shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the Board that— (A) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and (B) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and *728 (C) such individual is customarily engaged in an independently established trade, occupation, profession or business.” Sections 18-1, 18-2, 18-3 and 18-5 of Chap. 239 (1939 S. L. pages 575, 576, 577) provided: “[18-1] EMPLOYMENT. “The term ‘employment’ * * * where used in this Act shall, for the purpose of'this Act, mean service, including service in interstate commerce, performed by one or more individuals for wages or under any contract of hire, written or oral, express or implied. [18-2] WAGES. “The term ‘wages’ where used in this Act shall, for the purpose of this Act, mean all remuneration payable for personal services including commissions and bonuses and the cash value of all remuneration payable in any medium other than * money. The reasonable cash value of remuneration payable in any medium other than * money shall be estimated and determined * * * as the Board shall, by regulations, prescribe. * * [18-3] COVERED EMPLOYMENT. “The term ‘Covered Employment’ where used in this Act shall, for the purpose of this act, mean an individual’s entire service including service in interstate commerce, but excluding service excepted by section 18-5 of this Act, performed by him for wages or under any contract of hire, written or oral, express or implied, within or both within and without this State, in the course of the trade, profession or business of a covered employer, as defined in Section 7-5 of this Act.....” [18-5] EXCEPTED EMPLOYMENT. (a) ...... (b) ...... (c) ...... (d) ...... (e) Service performed by an individual if it is first shown to the satisfaction of the Board that— (1) He * * * has been and will continue to be free from direction or control over the performance of his services both * * * in law and in fact; and *729 (2) He * * * is customarily engaged in an independently established trade, profession or business. (f) ...... It will be noted the contract expressly provided that: “The said party of the second part (carrier) shall make such delivery and distribution according to his own means and methods of conveyance, which shall belong to and be in the exclusive charge and control of said party of the second part, and shall not be subject to control or supervision of said party of the first part, excepting as to the results of said work, and it is hereby expressly understood that the party of the first part (newspaper) does not hereby hire or rent the use of the same, or assume any liability for the use or method and use thereof.” And it will be further noted the Board found under the terms of the carrier contracts, the carriers were “free from control,” “but that it has not been shown to the satisfaction of the Board that the said ‘.route carriers’ are ‘customarily engaged in an independently established trade, profession or business.’ ” The finding of the Board to the effect it had not been satisfactorily shown the route carriers were engaged in “an independently established trade, profession or business” is contrary to the uncontradicted evidence. To illustrate: The only witness called at the hearing — circulation manager Westergren — testified that carrier Styles “handled the Rapid Express from Twin Falls to Buhl”; that carrier Norton “works for the Gloystein’s Cyclery as a mechanic” and that carrier Tiner had a “business of his own in the refrigeration field, repairing refrigerators.” Where, as here, the evidence shows without contradiction, carriers are actually and customarily engaged in an independently established trade or business, the Board cannot arbitrarily or capriciously find the contrary. This court held in Pierstorff v. Gray’s Auto Shop, 58 Ida. 438, 447, 74 Pac. (2d) 171, that “The rule applicable to all witnesses, whether parties or interested in the event of an action, is, that either a board, court, or jury must accept as true the positive uncontradicted testimony of a credible witness, unless his testimony is inherently improbable, or rendered so by *730 facts and circumstances disclosed at the hearing or trial. (Citing cases) .... neither the trial court nor a jury-may arbitrarily or capriciously disregard the testimony of a witness unimpeached by any of the modes known to the law, if such testimony does not exceed probability.” Furthermore, and as shown by the record, the carriers were not engaged in the business of publishing newspapers. They were engaged in an independent business— the transportation business — carrying newspapers from one town to another, the shortest distance being about thirty miles, and the longest about a hundred miles, compensation therefor being paid on a mileage basis. In addition to the transportation of newspapers, parcels for others than the publishers were also transported. It follows from what has been said, the order of the Board must be reversed, and the cause remanded, and it is so ordered, with directions to the Board to enter an order in harmony with the views herein expressed. Costs awarded appellants. Budge, Ailshie, JJ., concur.