[No. 33090. Department Two. Supreme Court April 14, 1955.]
LLOYD COOK, Appellant, v. THE DEPARTMENT OF LABOR AND
INDUSTRIES, Respondent.«1»
[1] WORKMEN'S COMPENSATION - EMPLOYEES WITHIN ACT - STATUTORY PROVISIONS - INDEPENDENT CONTRACTORS - PERSONAL LABOR AS ESSENCE OF EMPLOYMENT. Under Rem. Rev. Stat. (Sup.), § 7674-1, an independent contractor is a "workman" within the contemplation of the workmen's compensation act when the essence of his contract is personal labor; and the provisions of the contract, the nature of the work to be done, the situation of the parties, and other attendant circumstances must be considered in determining whether the personal labor of a claimant is the "essence" of his employment contract.
[2] SAME. A logging contractor was not a "workman" within the purview of the workmen's compensation act. and his claim for compensation for injuries sustained while engaged in his employment was properly rejected, where it appears that his contract with a lumber company was to cut, skid, load, and haul certain timber for a specified price per thousand feet, that there was no restriction on how his equipment was to be used or the work done except that the scattered timber was to be cut first, that one person could cut, skid, and haul the timber but it was impracticable for one person to load the truck, and that each day his wife brought him his lunch and remained to assist in loading the timber; since the claimant's own personal labor was not the sine qua non of his contract.
Appeal from a judgment of the superior court for Okanogan county, No. 13635, Wicks, J., entered April 29, 1954, upon findings, affirming an order of the board of industrial insurance appeals denying a claim for compensation under the workmen's compensation act. Affirmed.
H. A. Davis, for appellant.
The Attorney General and Kenneth G. Burrows, Assistant, for respondent.
WEAVER, J. -
The sole question on this appeal is whether the personal labor of plaintiff, an independent contractor, was the essence of his contract of employment within the purview of Rem. Rev. Stat. (Sup.), § 7674-1 [cf. RCW 51.08.180], which reads as follows:
«1» Reported in 282 P. (2d) 265.
[1] See 158 A. L. R. 915; 58 Am. Jur. 670.
476 COOK v. DEPT. LABOR & IND. [46 Wn. (2d)
"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." (Italics ours.)
Plaintiff filed a claim for compensation with the department of labor and industries, alleging that he sustained injuries while engaged in extrahazardous employment as an employee of Siegrist Lumber Company. Rejection of his claim by the supervisor of industrial insurance was sustained by the board of industrial insurance appeals and by the superior court.
Plaintiff owned a chain saw, truck, and tractor. He entered into an oral contract with Siegrist Lumber Company to cut, skid, load, and haul certain timber owned by the company for twenty-five dollars per thousand feet. There was no restriction on how the equipment was to be used or the work done, except that the scattered timber was to be cut first.
Plaintiff testified that one person could cut, skid, and haul the timber, but that it was impracticable, though perhaps not impossible, for one person to load the truck. Each day the plaintiff's wife brought him his lunch and remained to assist in loading the timber.
In Norman v. Department of Labor & Industries, 10 Wn. (2d) 180, 184, 116 P. (2d) 360 (1941), this court held that it was the intent of the legislature to bring, within the provisions of the act, independent contractors
". . . whose personal efforts constitute the main essential in accomplishing the objects of the employment."
[1, 2] The provisions of the contract, the nature of the work to be done, the situation of the parties, and other attendant circumstances must be considered in determining whether the personal labor of the plaintiff is the "essence" of the employment contract. As asked in Haller v. Department of Labor & Industries, 13 Wn. (2d) 164, 168, 124 P. (2d) 559 (1942),
Apr. 1955] METZGER v. QUICK. 477
"Was the labor which appellant was to perform personally the gist or substance, the vital sine qua non, the very heart and soul of his contract . . . "?
The record does not support the conclusion that plaintiff's own personal labor was the sine qua non of this contract.
Labor that may be done by others under the contract is not personal, as the word is used in the statute. Crall v. Department of Labor & Industries, 45 Wn. (2d) 497, 275 P. (2d) 903 (1954).
Plaintiff was not a "workman" within the purview of the statute.
The judgment is affirmed.
HAMLEY, C. J., MALLERY, HILL, and ROSELLINI, JJ., concur.