Davis v. State Industrial Accident Commission

This is an appeal by the State Industrial Accident Commission from a judgment of the circuit court awarding to Gertrude Davis, respondent, widow of Norman Edward Davis, compensation on account of the death of her husband, October 19, 1934, while he, according to the judgment, was working as an employee of Buck Bros., loggers. Buck Bros. had not rejected the provisions of the Oregon Workmen's Compensation Act. The sole issue presented by this appeal concerns the status of the deceased, Norman Edward Davis, at the time of his fatal injury, October 19, 1934. Respondent, the widow, contends that her husband, at the time of his death, was an employee of a partnership known as Buck Bros. The appellant, to which we shall refer as the defendant, insists that, although the deceased was working for Buck Bros., the provisions of 1933 Session Laws, page 113, chapter 116, section 2, demand a conclusion that in the contemplation of that enactment the deceased was working for himself. Section 2 is as follows: "The term `employer,' used in this act, shall be taken to mean any person, firm or corporation, including receiver, administrator, executor or trustee, who shall contract for and secure the right to direct and control the services of any person, and the term `workman' shall be taken to mean any person, male or female, who shall engage to furnish his or her services, subject to the direction or control of any employer; provided, that for the purposes of this act only, when workmen, either associating themselves together under a partnership agreement or as individuals, enter into a contract, the principal purpose of which is the performance of the labor on a particular piece of work, such work to be performed by themselves or with the assistance of other workmen employed by them, all *Page 396 such workmen shall be deemed employes of the persons having such work done, and not independent contractors. No person shall be deemed an independent contractor when the system of employment is merely a method of fixing wages and the workman performs work either with the employer's equipment, tools or appliances or under his direction." The evidence is free from contradiction and discloses the following: At the time of his fatal injury, October 19, 1934, the deceased, who was 26 years old, was buying an interest in a sawmill which he and his father operated as partners under the firm name of Davis Son. Apparently, the mill was a small outfit and young Davis worked in it as a sawyer. According to his father, the son "took odd jobs when the mill was shut down. * * * He worked for Simmons, three or four times, and he worked for Buck twice." In the vicinity of the mill was a stand of timber owned by one Butler. Davis Son had a contract with Butler which enabled them to cut this timber. They also had a contract with Buck Bros., which was composed of Bill and Tom Buck, whereby the Bucks, in consideration of $2.80 per thousand feet, bound themselves to fell the trees, trim them into saw logs and transport the logs to the mill. The contract required the Bucks to furnish the necessary crew of men and all of the equipment needed for the performance of this undertaking. Besides the two Bucks, only one of whom gave his full time to this task, the firm employed a crew of six men and used a tractor, two teams of horses, cables, axes, shovels, etc., in executing this contract. The contract gave Davis Son no control over Buck Bros.' employees, equipment, methods, etc. Buck Bros. were at liberty to select any employees they desired and choose any methods which they preferred. Buck Bros. had no interest in the mill. *Page 397 Their right to compensation accrued when sound logs reached the mill. The tractor pulled the logs from the place where they had been bucked to the course leading to the mill from whence they were moved by the teams the remainder of the distance. By the middle of October, 1934, Buck Bros., who had worked upon this contract for about six weeks, were delivering an insufficient supply of logs to the mill, with the result that the mill was forced to suspend its operations. Bill Buck, who was the manager of the operations, believed that one Virgil Ashoff, who operated the tractor, was incapable and that he was responsible for the unsatisfactory conditions. Young Davis was familiar with tractors and was idle due to the shutdown. Bill Buck now sought him out and urged him to assume charge of the tractor. Davis demurred because he did not like to displace Ashoff; nevertheless, as a result of Buck's insistance, he accepted the employment. The terms of the arrangement which the two men effected are not disclosed by the evidence because Buck did not testify, but two witnesses who overheard a part of the conversation swore that Buck hired Davis to operate the tractor and at the same time terminated Ashoff's employment. Davis promptly went to work. One and one-half hours later, while he was operating the tractor, he met with the fatal accident. The above are the facts. Without reviewing the numerous definitions of the terms "independent contractor" and "master and servant" which are readily available, we express our belief that, apart from the above statute, it is clear that Buck Bros. bore to Davis Son the relationship of independent contractors. But the defendant insists that the above statute demands *Page 398 a conclusion that the relationship of Buck Bros. to Davis Son was that of servant to master, and that therefore young Davis was working for himself when he assumed control of the tractor. Since he had not availed himself of the privileges afforded by 1933 Session Laws, page 113, chapter 116, section 3, whereby an employer may obtain compensation under the act in the event of his injury, the defendant insists that Davis's widow is not entitled to compensation. It will be observed that the enactment above quoted still retains the commonly accepted definition of the terms "employer", "workman" and "independent contractor", although it adds: "For the purposes of this act only, when workmen, either associating themselves together under a partnership agreement or as individuals, enter into a contract, the principal purpose of which is the performance of the labor on a particular piece of work such work to be performed by themselves or with the assistance of other workmen employed by them, all such workmen shall be deemed employees of the persons having such work done and not independent contractors." It is significant that this language is followed by a clause which states that a person shall not be deemed an independent contractor if his contract constitutes nothing more than "a method of fixing wages." The defendant concedes that the legislature passed this act to make clear the fact that station men engaged in highway construction are workmen within the contemplation of the compensation act. It is obvious that the arrangement effected between a contractor and his station men is merely a means of determining the latter's wages. The contractor and the station men are engaged in the same pursuit, that is, highway construction, but in the present instance Davis Son were *Page 399 not engaged in the same pursuit as that followed by Buck Bros. Hiram S. Davis, father of the deceased, very emphatically answered "Absolutely no" to the defendant's inquiry, "The mill and the operations conducted by Buck Bros. were all one logging operation?" To the next inquiry which was based upon a suggestion that the mill was using the logs brought in by Buck Bros., the father said, "Yes, but two different crews." In the present instance it is impossible to say that "the principal purpose" of the contract held by Buck Bros. was the performance of the labor on a particular piece of work" because one of the seven men who were performing the contract was operating the tractor, two more were handling the teams, while still another (Bill Buck) must have spent part of his time, at least, in supervising the operations. These operations besides involving the use of the expensive equipment already mentioned required fuel and oil for the tractor, as well as feed and care for the horses. A station man knows beforehand that his hard labor will yield nothing more than a wage computed in terms of the amount of material which he moves. He expects nothing on account of invested capital because he has none, and in most instances any other laborer who is willing to toil can get a job upon the same basis. Station men are not at liberty to select methods, but must do as they are bidden. But Buck Bros. held a contract which was available only to loggers. Manifestly, they expected to make a profit upon the work of each man whom they employed and upon their invested capital. In the event that the methods which they selected proved to be peculiarly effective they could expect that the $2.80 per thousand contract price would reward them accordingly. *Page 400 Without proceeding further, we express the belief that the above enactment was not intended to alter the ordinary definitions of the terms "independent contractor" and "master and servant" except to authorize the courts in the administration of the Workmen's Compensation Act to regard as a workman any person who works for wages, even though the latter is not expressed in a definite sum but is fixed by the quantity of service rendered. That being true, we are satisfied that Buck Bros. were independent contractors. We know of no provision of the law which rendered it impossible for young Davis, although a partner in the firm of Davis Son, to accept temporarily employment with Buck Bros. The mill had shut down due to an emergency, and young Davis was idle. When Bill Buck urged the young man to replace Ashoff so that the logs would move to the mill with the required degree of dispatch, Hiram Davis, senior partner, was present and offered no objection. We believe that at the time of his fatal injury young Davis was an employee of Buck Bros. The judgment of the circuit court is affirmed. BEAN, C.J., and KELLY and RAND, JJ., concur.