Dearborn v. Industrial Accident Commission

WASTE, J.

This is a proceeding brought to review, and have annulled, an award of the respondent, the Industrial Accident Commission. S. E. Hayden was killed on March 24, 1920, while working as a carpenter for Florence Ritchie Dearborn, the petitioner herein. The accident was caused by his being thrown from an automobile while on his way to a telephone to order lumber needed in the erection of the building on which he was working. He left surviving him the other respondents, a widow and three minor children, who were dependent upon him for support. The employer denied any liability for compensation for the death of Hayden, and the dependents made due application for an adjustment of the claim. There were two hearings before the commission. On the first the applicants were awarded the sum of $4,999.98. That decision was confirmed on the rehearing. Thereupon the petitioner brought this proceeding in review.

The defendant before the commission, the petitioner here, denied liability for compensation in the matter of Hayden’s death upon the ground that his employment was both casual and not in the course of petitioner’s trade, business, profession, or occupation. There was ample proof that Hayden, at the time of receiving the injuries from which he died, was actually performing services for Mrs. Dearborn. The burden was, therefore, cast upon petitioner to prove that the deceased was an independent contractor in the matter, or otherwise excluded from the provisions of the Compensation Act. (Workmen’s Compensation Act, sec. 19d, Stats. 1917, p. 849.) She was unsuccessful before the commission, which found that the employment of Hayden was not casual, and made the award. The correctness of that finding presents the only point of controversy on the hearing.

The material facts appear without conflict. Mrs. Dear-born, the petitioner, is associated with her husband in ranch

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ing near Blythe, in this state. Being desirous of having a small dwelling-house erected for the occupancy of her brother and his family, she employed the deceased Hayden to attend to the matter for her. She ordered the lumber and paid the labor bills. Her testimony relating to the employment is that “he [Hayden] was to build that little house at Fertilla. He was to receive his pay by the day; that was what he asked; he did not ask for pay any other way. I employed him. I authorized him to employ the other carpenters. There was no understanding with him that I would give him a lump sum of money for building the house so that he could pay them; the arrangement was hurried; there was nothing said about help. Ultimately the price [for the help] would come out of my pocket. The only sum that was mentioned was the amount he asked me for his services by the day—that was $8.50. That is what I agreed to pay him. There was no provision whatever in the arrangement with Mr. Hayden by which a sum of money was to be paid to him for building this house, out of which he could pay these other men.” It appears, also, that Mrs. Dearborn bought and paid for all the lumber and materials used in the erection of the building. It • seems conclusively established, therefore, that the deceased was not an independent contractor in building the house. Was he otherwise excluded from the protection of the act? To have worked this result his employment must have been both casual and not in the course of the business or occupation of his employer. As before stated, Mrs. Dearborn was engaged, with her husband, in farming. Respondents do not contend that the employment of Hayden was in the course of that business. Hence the inquiry narrows to a consideration of the alleged nature of his work.