California Employment Stabilization Commission v. Wirta

ADAMS, P. J. This action was instituted under the provisions of sections 37, 38 and 44 of the California Unemployment Insurance Act [Stats. 1935, p. 1226, as amended; 3 Deering’s Gen. Laws, Act 8780d], against defendant as administrator of the estate of Emil Wirta, for the collection of unemployment contributions, interest and penalties, for the period beginning July 1, 1939 and ending December 30, 1943. The decedent, during said period, operated what is known as a “tie camp” in Humboldt County. He employed certain employees including truck drivers, caterpillar and bulldozer operators and general utility men. Liability for failure to pay contribution upon these employees was admitted at the trial. However it was contended by plaintiff that certain other persons referred to as split products operators or “tie-makers” were also employees of decedent and that Wirta should have made contributions as to them. The trial court found to the contrary, and it is from its judgment in this behalf that this appeal was taken.

The evidence shows that decedent Wirta was engaged in the business of manufacturing and selling split products consisting of ties of various sizes, stakes, posts and shakes. He owned some timber and leased some from others. The “tie-makers” whose status is in question here, were skilled men, long experienced in their particular line of work. They operated as follows: Wirta would show them a “lay-out” consisting of a designated area, or a designated number of trees. They then bought the designated trees, or the trees on the designated area, upon a stumpage basis, felled the trees and made from them either shakes, ties, posts or stakes, according to their judgment as to which product or products could be made from them most advantageously. They were not told by Wirta or anyone in his employ what to make, they worked no regular hours, going and coming as they wished, sometimes “laying off” for periods of days. They furnished their own tools consisting of crosscut saws, dragsaws, axes [741]and wedges, and their own fuel to operate the dragsaws. They could, and sometimes did, take partners in to help in their work, and sometimes assisted one another in the felling of trees. Also they sometimes employed helpers whom they themselves paid. Their products were sold" mainly to Wirta who purchased and paid for them on the basis of so much per 1,000 board feet. The products purchased by Wirta were counted, graded and culled by him and he hauled them from the woods. He did not inspect the work while it was being done. The operators could and sometimes did sell their products to others, and did not receive pay from Wirta for such products as he did not consider satisfactory. The products made by the operators remained their property until paid for by Wirta, and risk of loss was theirs. Wirta kept no records of the trees these men worked, they considered themselves their own “bosses,” and they could quit work whenever they wished. Wirta could not discharge them, though he could refuse to sell any more trees to a man whose products were unsatisfactory. Wirta furnished meals and lodging to the operators if they desired to avail themselves of same, but they were charged for such facilities when they elected to use them. A form of agreement was introduced in evidence* but