I N THE S U P R E M E C O U R T O F T H E S T A T E O F MONTANA
DEBRA L . CARLSON,
C l a i m a n t and R e s p o n d e n t ,
VS.
JERRY CAIN,
E m p l o y e r and A p p e l l a n t ,
L E E E N T E R P R I S E S , d/b/a
THE B I L L I N G S GAZETTE,
E m p l o y e r and A p p e l l a n t ,
and
H A R T F O R D A C C I D E N T AND
I N D E M N I T Y COMPANY,
D e f e n d a n t and A p p e l l a n t .
Appeal from: Workers' Compensation C o u r t
H o n . T i m R e a r d o n , Judge p r e s i d i n g
C o u n s e l of Record:
For E m p l o y e r , D e f e n d a n t and A p p e l l a n t s ;
Moulton, Bellingham, Longo & Mather, B i l l i n g s ,
Montana
R a n d y H. B e l l i n g h a m argued, B i l l i n g s , M o n t a n a
For C l a i m a n t and R e s p o n d e n t :
K e e f e r , R o y b a l , H a n s o n , Stacey & Jarussi, B i l l i n g s ,
Montana
N e i l S. K e e f e r argued, B i l l i n g s , M o n t a n a
For R e s p o n d e n t and C r o s s - A p p e l l a n t :
A n d e r s o n , Brown, G e r b a s e , C e b u l l & Jones,
B i l l i n g s , Montana
S t e v e n J. H a r m a n argued, B i l l i n g s , M o n t a n a
submitted: February 28, 1983
~ecided: June 8 , 1 9 8 3
Filed: JN8
U
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Employer, Lee Enterprises, d/b/a The Billings Gazette
(Gazette) appeals from a decision of the Workers'
Compensation Court finding claimant, Debra Carlson, entitled
to receive Workers' Compensation benefits from the Gazette's
insurer, following her injury in an automobile accident while
delivering newspapers for her fiance, Jerry Cain. The
court's decision was based on its conclusions that claimant
was an employee of Cain; that Cain was an employee of the
Gazette, and that he had failed to provide Workers'
Compensation insurance for claimant, rendering the Gazette
liable for claimant's benefits under Section 39-71-405(2),
MCA . Cain cross-appeals. We affirm the Workers'
Compensation Court.
The following issues are presented to this Court for
review:
1. Whether Debra Carlson was an employee of Jerry Cain.
2. If Debra Carlson was an employee of Jerry Cain,
whether such employment is specifically excluded under the
following exceptions contained in Section 39-71-401(2) MCA:
(a) Casual employment;
(b) Employment of members of an
employer's family dwelling in the
employer's household;
(c) Employment of sole proprietors or
working members of a partnership;
(d) Any person performing services in
return for aid or sustenance only.
3. Whether Jerry Cain and Mike Cain were independent
contractors of The Billings Gazette?
In November 1979, claimant met Jerry Cain in Miles City.
They became engaged during the Christmas season of 1979 and
began living together toward the end of December 1979. Jerry
Cain was married to another woman at the time; that marriage
was not dissolved until February 22, 1981, because of a
prolonged custody dispute. Between January of 1980 and the
end of March, 1980, claimant occasionally rode with Cain
while he delivered newspapers for Dave Gamble, who had
carrier contracts with the Gazette. During this period,
Cain, who also worked as a mechanic, made all of the house
payments, paid all utilities and provided groceries for
claimant and himself. He also provided claimant with the use
of an automobile he owned. During this time, claimant sang
in a band on weekends, earning approximately $100 per week.
On March 31, 1980, when Dave Gamble's carrier contract
expired, Jerry Cain and his father, Mike Cain, signed one
contract with the Gazette to haul n.ewspapersfrom Billings to
Fairview, Montana, and all drop points between, and another
similar contract to deliver papers from Miles City to Baker.
Mike Cain signed the contract and, several weeks later, after
the bank turned down Jerry Cain's application for a loan,
took out a bank loan, which Jerry Cain co-signed. All
evidence indicates Mike Cain's only involvement was to help
get his son started as a carrier for the Gazette. Neither
the bank nor the Gazette would accept only Jerry Cain's
signature. Gazette checks were made out to both Michael and
Jerry Cain to insure payment on the bank loan. Mike Cain
himself never profited from the contract, nor did he perform
any of the work under the contract.
The contracts included the following provisions:
SECTION 111. RELATIONSHIP OF PARTIES
11The parties intend that an independent
contractor-employer relationship will be created by
this contract. The company is interested only in
the results to be achieved, and the conduct and
control of the work will lie solely with the
carrier. The carrier is not to be considered an
agent or employee of company for any purpose, and
the employees of carrier are not entitled to any of
the benefits that the company provides for company
employees. The company does not control the
carrier in any of the details of performance of
this agreement nor does it control the routes to be
traveled or the hours of employment or the manner
in which the duties of the carrier are performed."
SECTION IV. LIABILITY
'
1 The work to be performed under this contract
will be performed entirely at carrier's risk, and
carrier assumes all responsibility for the
condition of his equipment used in the performance
of this contract. Carrier will carry, - -
for the
duration of this contract, public liabilit
insurance - - amount acceptable - company, -
1 7 an to ant
Workmen's Compensation insurance covering - his
employees. Contractor agrees to indemnify company
for any and all liability, loss or claims arising
in any way out of the performance of this
agreement." (Emphasis supplied.)
The two contracts provided for Cain to be paid a total
$6,470 per month. He was paid bi-monthly.
After the Cains were awarded the contract, claimant
began delivering papers to Baker for Jerry Cain three or four
times a week. Occasionally she would make the run to
Fairview instead of Baker. When claimant did not make the
run, Cain had to hire someone else, whom he paid $15 for the
Baker run and $30 for the Fairview run. Claimant was not
paid any money for making the runs, nor did she receive
anything more in the way of support than she had received
prior to Cain's receiving the carrier contracts. In May,
according to claimant, she discontinued singing in the band
"because Cain said we could make more money running the
Gazette route than I could in the band." According to Cain,
the other members of the band "said they didn't need her
anymore. "
On June 28, 1980, Carlson suffered severe head injuries
in an automobile accident; she was driving a 1979 Mazda
furnished by Cain and was returning to Miles City early in
the morning, after having delivered a load of newspapers to
Baker. As a result of her injuries, claimant, still in her
early twenties, has muscular weakness on the left side, some
intellectual impairment, and severe headaches. Her throat
injuries have affected her ability to sing. She is currently
considered unemployable and is attending a vocational
training school. She is living with her mother; Cain has
married someone else. At the time claimant was injured, Cain
was carrying no Workers' Compensation insurance, although the
carrier contract expressly required him to do so.
Claimant filed a claim against Jerry Cain with the
Uninsured Employers' Fund. Following an investigation, her
claim was denied under Section 39-71-401(2) (f), MCA, on the
grounds that claimant was "performing a service in return for
aid or sustenance only," and was thus exempted from the
Workers' compensation Act. Claimant subsequently filed two
petitions for hearing with the Workers' Compensation Court,
one against Jerry Cain and the Uninsured Employers' Fund, the
second against Lee Enterprises, d/b/a The Billings Gazette
and their insurance carrier, Hartford Accident and Indemnity.
The two cases were consolidated on July 9, 1981. Trial was
held November 20, 1981. Claimant and the Gazette moved the
court to dismiss without prejudice as to the Uninsured
Employers' Fund, which was bankrupt; the motion was granted.
The court ordered additional depositions, briefs, and
proposed findings.
The Workers' Compensation Court entered judgment for
claimant on April 23, 1982, concluding that Jerry Cain was
not an independent contractor, but an employee of the
Gazette; that claimant was an employee of Jerry Cain under an
implied contract for hire, Section 39-71-118, MCA; and that
the Gazette's insurer was liable for claimant's medical
expenses, and wage benefits amounting to $100 per week, under
Section 39-71-405(2), and 39-71-118, MCA. The Gazette
appeals. Cain cross-appeals, limiting his appeal to
challenging claimant's status as his employee.
We note that where, as here, both facts and legal
conclusions are disputed, two standards of review are
appropriate:
"When presented with an issue which challenges the
sufficiency of the evidence to support the court's
findings or challenges the credibility of that
evidence, the scope of our review is limited.
"Our function in reviewing a decision of the
Workers1 Compensation Court is to determine whether
there is substantial evidence to support the
findings and conclusions of that court. We cannot
substitute our judgment for that of the trial court
as to the weight of the evidence on questions of
fact. Where there is substantial evidence to
support the findings of the Workers' Compensation
Court, this Court cannot overturn the decision.
Bond v. St. Regis Paper Co. (1977), Mont., 571 P.2d
372, 34 St.Rep. 1237; Robins v. Anaconda Aluminum
Co. (1978), Mont., 575 P.2d 67, 35 St.Rep. 213. '
Steffes v. 93 Leasing Co., Inc. [U.S .F. & G. Co. 1
(1978), Mont. 580 P.2d 450, 452, 453, 35 St.Rep.
816.
"When, however, presented with an issue which
raises only a question of law 'an appellate court
is not bound by the findings of the trial court,
but is free to draw its own conclusions from the
evidence presented.' Walsh v. Eberlin (1977), 114
Ariz. 342, 560 P.2d 1249, 1251; Sapp v. Barenfeld
(1949), 34 Cal.2d 515, 212 P.2d 233, 236." Sharp v.
Hoerner Waldorf Corp. (1978), 178 Mont. 419,
422-23, 584 P.2d 1298, 1300.
In Sharp, the facts were relatively undisputed, the
question presented was one of law, and appellant "[did] not
seek a reweighing of the evidence, rather a reversal for
failure to apply the proper standard of law." Sharp, 178
Mont. at 423-24, 584 P.2d at 1301. That is not the case
here, where certain factual questions decided by the Workers'
Compensation Court are challenged on appeal. To the extent
that factual determinations are questioned, we apply the
Steffes test, and defer to the fact-finder where substantial
evidence exists to support its determinations. As noted in
Woody v. Waibel (1976) 276 Ore. 189, 554 P.2d 492, 494, N. 3:
"It is true that there may be questions concerning
facts surrounding the arrangements between the
parties which would be relevant in determining
control. In this sense, the question is one for
the trier of fact. However, where there is no
dispute as to what the arrangement is, the question
of employee or independent contractor status is one
of law for the court. l1
Both Jerry Cain and the Gazette challenge the conclusion
of the Workers1 Compensation Court that claimant was Cain's
employee. The court recognized that employment status can be
established in part by the existence of a contract for hire,
and that such a contract may be "express or implied, oral or
written." Section 39-71-118, MCA. The court concluded that
an implied contract for hire existed, stating:
"The fact that nothing was said about pay before
services were rendered by the claimant does not
negate an implication that Jerry Cain was obligated
to pay a reasonable amount for claimant's services
performed for and accepted by Jerry Cain. In
addition, claimant testified that since she and
Jerry Cain were engaged she did not expect wages
because she thought they were going to be married.
It is the conclusion of this Court that claimant
exchanged her delivery services for the use of a
vehicle, room and board, and the expectation of
financial security from her impending marriage.
Under these circumstances a contract of hire may
certainly be implied. See 1C Larson, Workmen's
Compensation Law, S47.43. . ."
Cain and the Gazette argue that, since Cain and claimant
were already enga.ged, and Cain had paid for food and rent and
furnished claimant with a car before she started driving for
him, claimant was not actually paid for her work, i.e., there
was no increase in benefits or expectations. They also argue
that Cain exercised no control over claimant; she was not
required to drive. They emphasize that the fine assessed by
the State against Cain for his failure to carry Worker's
Compensation Insurance for his employees did not include a
penalty for his failure to insure claimant.
We are not persuaded by Cain's and the Gazette's
arguments, for several reasons. It is true that a "contract
for hire," contemplates the worker's being paid; as Larson,
Workmen's Compensation Law, Vol. lC, ~;47.00(c), p. 8-231,
states:
"Gratuitous servants are not employees, since the
element of 'hire' is lacking; but payment may be
found in anything of value such as board and
lodging, and an agreement to pay is usually implied
when the parties have omitted to make an express
agreement on payment."
While section 39-71-401 (2)(f), MCA, exempts from
coverage those persons working for aid or sustenance only
unless both employer and insurer elect to cover them, we find
other considerations apply in the case at bar. Here, there
was no express agreement on payment between claimant and
Cain, but claimant worked virtually full-time for Cain doing
a portion of the work for which he received $6,470 per month.
Her work saved Cain the $15 to $30 per night he would have
had to pay someone else to make the run. Claimant expected
to marry Cain, and to share his life; her activities helped
assure that Cain's livelihood would provide future financial
security for her as well. Although this is a very close
decision, we find sufficient evidence to support the Workers1
Compensation Court's conclusion that, claimant reasonably
expected a benefit to flow from her work beyond those
benefits she already enjoyed as Cain's fiance.
Appellants' argument -- that claimant received nothing
more than she had before she began driving regularly for Cain
-- is an argument that cuts both ways. If claimant received
board, room, a car, and continued expectation of marriage
merely as part of sharing Cain's home with him, she would
reasonably expect to be paid considerably more than that for
contributing a good share of the work for which Cain brought
in almost $6,500 a month.
Indeed, the record indicates that claimant - expect to
did
be paid something for her work. The transcript contains the
following statements by claimant:
[on direct]
"Q. Now, did Jerry pay you any money for this work
you were doing for him? A. No.
"Q. What was your understanding about getting
paid, if you had an understanding? A. I never
really had an understanding. I just assumed he
would pay me.
"Q. [on cross-examination] Okay. Thank you,
Debra. So you didn't really assume that he was
going to pay you any money, did you? A. When I
first started out, I did.
"Q. When did you first start? A. Boy, March or
April.
"Q. Well, did that change? That obviously changed
then? A. What changed?
"Q. Well the fact that you thought you were going
to get money? A. I still thought he might pay me
something or something."
The record establishes that claimant furnished valuable
driving services to Cain; she reasonably expected payment
beyond those benefits which were just a part of her living
arrangement. Under these circumstances an implicit agreement
to pay may be and properly was inferred in the absence of an
express agreement on payment. Larson Vol. lC, S47.00 (c) p.
8-231. We find there is sufficient evidence here to
establish a contract for hire under section 39-71-117, and
39-71-118, MCA.
In Montana, the other test to determine whether employee
status exists is the "control test," under which the right to
control details of the individual's work is decisive. State
ex rel. Ferguson v. District Court (1974) 164 Mont. 84, 88,
519 P.2d 151, 153. In Ferguson, while recognizing that the
test is most frequently used to determine whether or not
independent contractor status exists, we noted that it "may
be used to also determine who the employer is . . ." 164
Mont. at 88, 519 P.2d at 153. Similarly, here, the test may
be used to determine whether employee status existed at the
time a claimant was injured. This broad overlap in the test
for distinguishing between an employee and an independent
contractor, and the test for determining whether employee
status exists, is explained by Larson, Vol. lC, S43.20, p.
"The definition of employment status almost always
takes the form of distinguishing an employee from
an independent contractor. The reason is simple.
If one wants to get something done without doing it
oneself, there are really only two ways open: to
hire an employee to do it, or to contract out the
work to an independent entrepreneur. The
employee-independent contractor distinction is not
an artificial dichotomy invented by legal minds
interested in fine distinctions for their own sake.
It is a fundamental fact of business life which
could not be abolished by the most grandiose
legislation."
The four factors to be considered under the "control
test" are those articulated in Sharp; supra see also Larson
Vol. lC, S44.10 p. 8-19. The factors include: (1) direct
evidence of right or exercise of control; (2) method of
payment; (3) furnishing of equipment; and (4) right to fire.
Employment status can be established on the strength of any
one of the factors, Sharp 178 Mont. at 425, 584 P.2d at 1302.
Appellants make much of evidence that claimant was not
required to deliver papers for Cain. While that option has
some bearing on the extent of direct control exercised by
Cain, it does not alter the fact that when she did deliver,
claimant used Cain's vehicle and was obligated to do for Cain
the same work the Gazette required of Cain, work which Cain
now argues (and we agree -- Issue 111) establishes him as an
employee of the Gazette. What is more, Cain could have
"terminated" claimant at any time, by refusing her the use of
his vehicle, hiring somone else to make the run or doing it
himself. On the strength of the presence of three out of
four factors listed in Sharp as indicating control, we find
that the Workers' Compensation Court did not err in its
conclusion that claimant was an employee of Jerry Cain.
The Gazette argues that, even if an employer-employee
relationship existed between claimant and Cain, the
exemptions under section 39-71-401 ( 2 ) (b), (c), (dl, and (f),
MCA, bar recovery under the Workers' Compensation Act.
Section 39-71-401(2), MCA, provides, in pertinent part:
"(2) Unless the employer elects coverage for these
employments under this chapter and an insurer
allows such an election, the Workers' Compensation
Act does not apply to any of the following
employments:
(a) ...
(b) casual employment as defined in 39-71-116 (3);
(c) employment of members of an employer's family
dwelling in the employer's household;
(d) employment of sole proprietors or working
members of a partnership;
(f) any person performing services in return for
aid or sustenance only;
We agree with the Workers' Compensation Court that none of
these sub-sections applies to claimant.
"Casual employment" is defined in section 39-71-116 (3),
MCA, as "employment not in the usual course of trade,
business, profession or occupation of the employer." When
claimant delivered papers for Cain, she was doing work which
was, beyond question, in the usual course of Cain's
occupation. Cain's only occupation at the time of claimant's
accident was to deliver papers for the Gazette. Exemption
(b) does not apply.
The Workers1 Compensation Court properly rejected
exemption (c), noting, "A common law marriage cannot be
imputed to their relationship when Jerry Cain was at that
time married to another woman and claimant was aware of it."
Jerry Cain's prior marriage was not dissolved until eight
months after claimant's accident. Exemption (c) does not
apply
The Workers1 Compensation Court also properly rejected
exemption (d), because "[tlhe evidence establishes that
claimant was not a sole proprietor, nor was she a member of a
partnership. Her name does not appear in the Gazette
contracts, the titles to the vehicles, or the checks paid by
the Gazette to the contractors. There was no evidence of any
kind of a partnership agreement between Jerry Cain and
claimant." On review, we find the evidence supports this
conclusion. We are not persuaded by the Gazette's claim that
claimant and Cain were working together as "a husband and
wife team, almost like a partnership. l1 Exemption (d) does
not apply.
Finally, we approve the trial court's conclusion that
the "aid or sustenance" exemption, (f), refers to "board and
room." This conclusion is consistent with that of Norman
Grosfield, Montana Workers1 Compensation Manual S2.11, p. 4.
("The Division of Workers1 Compensation considers this
provision as applying to individuals who work for only board
and room.") As noted, infra, the evidence supports the trial
court's conclusion that claimant worked for financial
security in her anticipated marriage to Cain; and claimant's
own testimony indicates her reasonable expectation that Cain
would pay her something. As claimant points out, she was not
just doing housework and cooking in exchange for room and
board. She was working virtually full-time outside the home
for Cain. Her reasonable expectations exceeded room and
board. We hold, therefore, that the "aid and sustenance"
exemption does not apply.
The third argument made by the Gazette is that Jerry
Cain was an independent contractor of the Gazette, within the
meaning of section 39-71-120, MCA, which provides:
"An 'independent contractor' is one who renders
service in the course of an occupation and:
''(1) has been and will continue to be free from
control or direction over the performance of the
services, both under his contract and in fact; and
" (2) is engaged in an independently established
trade, occupation, profession, or business."
In Sharp, supra, we considered the difference between an
employee and an independent contractor.
"'The test to determine whether or not an
employer-employee relationship exists ... is the
so called control test. Under that test an
individual is in the service of another when that
other has the right to control the details of the
individual's work.' State ex rel. Ferguson v.
District Court (1974), 164 Mont. 84, 88, 519 P.2d
151, 153. Respondent has argued an employer must
control the details of a performance before the
performer is considered an employee. However, the
determinative test is based on the right, not just
the exercise, of control. Larson, Workmen's
Compensation Law, Vol. lA, S44.10, p. 8-19;
- -
Ferguson, supra." Sharp, 178 Mont. at 424, 584
P.2d at 1301.
The four factors used in determining right of control,
are as noted, infra: (1) direct evidence of right or
exercise of control; (2) method of payment; (3) furnishing of
equipment; and (4) right to fire.
Jerry Cain received payment every two weeks. Generally,
payment by time tends to show employment, while payment by
completed project tends to indicate an independent
contractor. Payment by piece-work or by commission is
consistent with either status. Larson, Vol. lC, 544.33, p.
8-73.
Section V of the contract provided the Gazette with the
right to terminate the contract upon thirty days' notice in
writing. This is not particularly significant, since the
employer of an independent contractor may require
satisfaction in the end result, and may terminate for breach
of contract when that requirement is not met. Termination at
will or for failure to perform certain details unrelated to
the end result would strongly support employee status,
Larson, Vol lC, 544.35, p. 8-116 et seq.
The papers were available at the Gazette loading dock in
Billings between 11:OO p.m. and 12:OO a.m. It would
generally take around forty-five minutes to load the papers
into Cain's truck. Several drops were required on the trip
to Sidney, a distance of 300 miles. Jerry Cain testified
that Mr. Stubblefield of the Gazette told him to have the
papers in Sidney no later than 6:30 a.m. Although Cain was
allowed to travel any route he chose, because of the drops
and time constraints, it was necessary that he took the
shortest route; indeed, Cain testified that he had to drive
around 65 mph to arrive at Sidney at 6:30 a.m.
Cain occasionally would receive written orders from the
Gazette advising him that drop points had been changed, and
he was requested to honor those changes. The Gazette also
showed him how to load his truck, putting the bundles for
Sidney on first, since they would be the last to come off.
The Gazette also furnished Cain with a telephone credit card
so he could apprise the Gazette of any problems he might
encounter with deliveries.
At times Cain was requested to carry vending machines
which dispensed Gazette papers to and from Billings for
repairs. He was also requested to deliver and delivered
fence posts and the tubes used by the Gazette as rural "paper
boxes." Cain sometimes was required to carry letters and
packages to Gazette district offices along his route. These
extra services were not provided for in the contract, nor did
Cain receive extra compensation for doing them. Cain was
also expected to pick up messages with orders or changes from
a room in the Gazette's Billings offices, when he picked up
the papers.
The evidence establishes that Cain rendered service as a
carrier for the Gazette pursuant to two written contracts.
While those contracts very adequately state that Cain was an
ind.ependent contractor and that the Gazette disclaims having
any control, section 39-71-120(1), MCA, provides that the
independent contractor must be free from control or direction
of the performance of his services - -
"in fact," as well as
under his contract. In other words, the mere proof that this
contract designates the carrier as an independent contractor
is not controlling; the carrier must be independent in fact.
The Workers' Compensation Court concluded that "Jerry
Cain's performance of the contract was not free from control
or direction from the Gazette either under the contract or in
fact." We find substantial evidence to support the findings
of the Workers' Compensation Court, as to the Gazette's
actual exercise of control over Cain, and on that basis
affirm the court's conclusion.
There are two collateral matters here which should be
noted. Under the carrier contract both Mike Cain and Jerry
Cain may be required to indemnify the Gazette for liability
arising out of the contract's performance. If the Cains are
found to be independent contractors, their potential
liability to the Gazette is supported by section
39-71-405(l), MCA. If Jerry Cain is an employee of the
Gazette, the Cains' potential liability must be established
by the contract alone. See section 39-71-405(2), MCA.
Claimant supports a finding of Cain's employee status "for
humanitarian reasons," - Mike Cain should not be reduced
viz.,
to poverty, when his participation in the contract was solely
for the purpose of helping his son.
Our decision, like that of the Workers' Compensation
Court, must turn upon the facts, regardless of the effect
upon the parties. Here, the trial court found facts
establishing the Gazette's right to control the details of
Cain's work. Substantial evidence supports the trial court's
conclusion. On that basis, and that basis alone, we must
affirm the trial court's conclusion that Jerry Cain was an
employee of the Gazette.
The Gazette urges this Court to find independent
contractor status as a matter of policy, arguing that our
finding employee status would have a devastating statewide
effect upon newspapers, whose carriers would automatically
become "employees" within the meaning of the Workers'
Compensation Act. We do not agree. Our decision today
applies only to the relationship between Jerry Cain and the
Gazette; we make no sweeping statements concerning newspaper
carriers in general. Had the Gazette's dealings with Jerry
Cain been free of the trappings of control noted above,
independent contractor status would have been found. The
contract clearly and effectively establishes the intent to
create an independent contractor relationship between the
Gazette and its carriers; the facts of the relationship
simply do not bear out that intent, as required under section
We affirm the Workers' Compensation Court on all issues,
and remand this case for a determination of reasonable costs
and attorney's fees, pursuant to section 39-71-611, MCA.
We concur:
Judge, s(Stting in place16f Mr.
Justice John C. Sheehy
H o n o r a b l e P e t e r Rapkoch , D i s t r i c t J u d g e , d i s s e n t i n g .
The W o r k e r s ' C o m p e n s a t i o n C o u r t " f o u n d " t h e n e c e s s a r y f a c t u a l
elements of employment, without any basis in the transcript.
There being no "findings supported by substantial e v i d e n c e ,"
( - t- f f e s and S h a r p ,
-
S e cited by t h e m a j o r i t y ) , t h i s Court should
reverse.
On the issue of the r e l a t i o n s h i p between t h e c l a i m a n t and
J e r r y C a i n , b e f o r e t h e r e c a n be a n a n a l y s i s of t h e n a t u r e of t h a t
relationship, there must first of all be shown a c o n t r -t --
ac ual
relationship. The unilateral, unfulfilled, frustrated
" a s s u m p t i o n " of t h e c l a i m a n t t h a t s h e would be p a i d " s o m e t h i n g ,I1
or, for t h a t matter, that "she thought t h e y were g o i n g to be
married," are c e r t a i n l y not sufficient to create a contractual
relationship. Nor are they sufficient to constitute
" e x p e c t a t i o n s " i n t h e s e n s e t h a t something is r e a l i s t i c a l l y pro-
mised and likely to be received. As argued by C a i n and the
Gazette, t h e r e was no c o n s i d e r a t i o n f o r t h e c l a i m a n t ' s s e r v i c e s .
S h e r e c e i v e d n o t h i n g a d d i t i o n a l and s h e n e v e r t h o u g h t of a n y t h i n g
additional. T h a t i s my c l e a r p e r c e p t i o n of t h e e v i d e n c e .
An a t t o r n e y would n o t a d v i s e a c l i e n t i n a d v a n c e t o go o u t
and make a c o n t r a c t on t h a t b a s i s ; n o r , i t is s u b m i t t e d , would he
a d v i s e a c l i e n t t o s u e f o r t h e b r e a c h of s u c h a " c o n t r a c t . "
A c c o r d i n g t o t h e e v i d e n c e , a t t h e r e l e v a n t times t h e r e were
n o n e of t h e e l e m e n t s of an employment c o n t r a c t , e i t h e r i n f a c t o r
i n t h e m i n d s of t h e p e o p l e i n v o l v e d , u n t i l it was s e e n t h a t t h e s e
e l e m e n t s were n e c e s s a r y f o r the case. They were t h e n manufac-
t u r e d o u t of whole c l o t h by o t h e r , f e r t i l e , m i n d s . The W o r k e r s '
C o m p e n s a t i o n C o u r t a p p e a r s t o h a v e i n j e c t e d i t s own i d e a s of what
it would have done in the circumstances of this case, after
knowing, as we do, what truly tragic thing happened to the
claimant. The m a j o r i t y seems t o a c q u i e s c e i n t h a t p r o c e s s . I
cannot.
I further question the majority's reliance upon Norman
G r o s f i e l d , Montana W o r k e r s ' C o m p e n s a t i o n -- S e c . 2 . 1 1 ,
Manual, p.4,
t h a t "The d i v i s i o n of W o r k e r s ' C o m p e n s a t i o n c o n s i d e r s t h i s p r o v i -
s i o n ( t h e " a i d and s u s t e n a n c e " e x e m p t i o n of S e c t i o n 3 9 - 7 1 - 4 0 2 ( 2 ) ,
-
-
MCA) as applying to individuals who work for only room and
board." That begs the q u e s t i o n . However, I d o b e l i e v e from t h e
evidence that the c l a i m a n t worked for "aid and sustenance" a t
most. There is no evidence that she worked "for financial
s e c u r i t y i n her a n t i c i p a t e d marriage ."
The r e l a t i o n s h i p b e t w e e n t h e G a z e t t e and J e r r y C a i n was shown
by the evidence to be one between parties to an independent
contract. Jerry Cain was not an employee of the Gazette.
The b a s i c t e s t a p p l i e d by t h e m a j o r i t y i s t h a t of control.
A s the majority correctly indicates, i n applying t h i s t e s t , one
must be careful to distinguish between the purpose of the
c o n t r a c t and t h e r i g h t t o , o r t h e a c t u a l , c o n t r o l of t h e manner
or d e t a i l s of performance of that contract. Every c o n t r a c t ,
i n d e p e n d e n t , employment o r o t h e r w i s e , h a s a p u r p o s e . The p u r p o s e
of the instant contract was to get the newspapers to their
appointed places at the appointed times and in suitable con-
dition.
A l l o f t h e f a c t o r s s t a t e d by Mr. C a i n and o t h e r s a s p o i n t s of
" c o n t r o l " by t h e G a z e t t e o v e r Mr. Cain a r e addressed p u r e l y to
t h e m e e t i n g of the requirements, the purpose, of the contract.
The f a c t t h a t t h e d i s t a n c e and t i m e r e q u i r e m e n t s a r e demanding
v6
and r e s t r i c t ' does n o t m i l i t a t e a g a i n s t an i n d e p e n d e n t c o n t r a c t .
The r i g h t t o c o n t r o l , which d e s t r o y s a n i n d e p e n d e n t c o n t r a c t and
i n d i c a t e s one of employment, is t h e r i g h t t o d e t e r m i n e which of
two o r more f i t t i n g ways of a c h i e v i n g t h e p u r p o s e of t h e c o n t r a c t
w i l l be followed. B e c a u s e of t h e n a t u r e of the contract here,
there was no room for, or any right to, control.
The future looks bleak for independent contracts.
I therefore r e s p e c t f u l l y disagree with the majority i n t h e i r
o p i n i o n t h a t t h e c l a i m a n t was an employee of J e r r y C a i n and t h a t
Jerry Cain was an employee of Lee Ersterprises.
p l a c e of M r . C h i e f J u s t i c e F r a n k I
Haswell.
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concur t h e foregoing d i ss e n t .
YP u