Dieckman v. Department of Labor & Industries

Schwellenbach, J. September 19, 1952, Donald Dieck-man was killed in a logging accident on the premises of the [379] Auburn Lumber Company. September 25, 1952, Lois M. Dieckman filed her claim for a widow’s pension with the department of labor and industries, which was rejected. The board of industrial insurance appeals, on March 31, 1954, affirmed the board’s action. Claimant’s appeal to the superior court for King county was dismissed with prejudice on the ground that there was insufficient evidence to present any question to the jury. This appeal follows. Jet Dieckman, brother of the deceased, owned some logging equipment consisting of a truck and “cherrypicker.” A cherrypicker is a small crane or lifting device, equipped with a winch and cable. It is used for lifting, moving, loading, or unloading logs. At the end of the cable are tongs or hooks, which engage the logs in the process of lifting or moving them. Apparently the device can be used by two men, but it is more efficiently used by a crew of three. In the latter instance, one man operates the winch, another fastens the tongs into the logs, and the third physically guides or directs the logs as they are lifted or moved by the cherrypicker. The two brothers usually worked together in various logging and other activities. Jet heard that the Auburn Lumber Company was interested in obtaining someone with a cherrypicker and truck to move logs from a stockpile to a pond on the premises of the company. He contacted the company bookkeeper, who later, about September 1, 1952, telephoned him. Jet hesitated to accept the job because he was not sure whether his brother Donald would be available. He contacted Donald, found he would be available, and discussed with him methods of pay. Jet favored doing the work for so much per thousand feet, but he accepted Donald’s suggestion that they be paid on an hourly basis. In a telephone conversation between Jet and the bookkeeper the following night, a rate of ten dollars per hour for the two men and equipment was discussed. The bookkeeper was not able to decide the matter, but he suggested that they come down and start the next morning. Jet and Donald went down in the morning and were met by the [380] owner, who, in response to a question, told, them where to start work. The owner assisted the two brothers in the operation by hooking the tongs into the logs. Jet and Donald alternated in running the winch and in guiding the logs as they were moved by the cherrypicker. After two days of work, the pond was sufficiently filled with logs to permit the mill to operate for awhile. At the end of the second day, Jet picked up the check for the work done. Upon his suggestion, it was made out to him, and the brothers agreed between themselves that they would divide the pay, each brother receiving $2.50 per hour, and Jet receiving the additional five dollars per hour for the use of the equipment, he paying all operating expenses. In about the same manner, the two brothers worked at the mill on two subsequent occasions. It was on the third such occasion that a log fell on Donald, injuring him fatally. It was stipulated that Donald was engaged in extrahazardous work on the premises of the Auburn Lumber Company at the time of his death. It is the theory of appellant that Donald Dieckman was killed at the Auburn Lumber Company while working there as an independent contractor. Section 2, chapter 211, Laws of 1937, p. 1030 [cf. RCW 51.08.180], provides: “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.” We must look to the contract to determine whether its essence was the personal labor of Donald Dieckman for the company. An employer may contract with two workmen, the essence of which is their joint personal labor. See White v. Department of Labor & Industries, 48 Wn. (2d) 470, 294 P. (2d) 650. The only testimony in the record is that given by Jet Dieckman. It indicated that the bookkeeper knew, dur [381] ing the preliminary negotiations, that Jet would associate with his brother in doing the job. Jet testified positively that he was not the boss and that his brother was “more of a boss” than he was, and that they merely worked together, each doing whatever needed to be done. This, coupled with the indecisiveness of the bookkeeper regarding whom the check should be made out to, would support a conclusion that the two brothers were on an equal basis in the work for the Auburn Lumber Company. Jet was not working for Donald, nor Donald for Jet, but they were jointly working as independent contractors for the company. In passing upon the sufficiency of the evidence to present a case to the jury in workmen’s compensation cases, we will review all the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. Dayton v. Department of Labor & Industries, 45 Wn. (2d) 797, 278 P. (2d) 319. We do not feel that the fact that the owner assisted the brothers in moving the logs, of itself, is sufficient to justify a holding that the essence of the contract was not the personal labor of Jet and Donald Dieckman. The record is silent as to why the owner worked with them. The work could have been done without his help. This case is distinguishable from the White case, supra, where, in order to complete the work, Mr. and Mrs. White were compelled to employ a man to assist them. However, we do believe that the decision in the White case is decisive of the problem confronting us. That case held that, where an independent contractor must of necessity supply machinery or equipment as distinguished from ordinary hand tools, the essence of his contract is not his personal labor. Here the company contracted for the labor of two men and a cherrypicker (most certainly not an ordinary hand tool). The compensation was to be ten dollars per hour for the two men and equipment. The equipment was necessary for the performance of the contract. [382] The essence of the contract was not the personal labor of Jet and Donald Dieckman. The judgment is affirmed. Donworth, C. J., Mallery, Hill, Weaver, and Ott, JJ., concur.