(dissenting):
The majority opinion finds more comparison in the cases of Moon v. Ervin, 64 Idaho 464, 133 P.2d 933 (1943), Gif-ford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948) and Kirk v. United States, 232 F.2d 763 (9th Cir.1956) than in Beedy v. Washington Water Power Co., 238 F.2d 123 (9th Cir.1956). I find the comparisons strained. The special circumstances in Beedy (supra) are aided here by the degree of control exercised by Monsanto over the work of the independent contractor.
Here, as in Beedy (supra) there is an independent contractor adding to existing facilities. The end result — a necessary and important part of the defendant’s entire operation — is indistinguishable. The language of Beedy is here apposite :
“[A] 11 that need be shown is that the employee was injured while performing work pertaining to the business, trade or occupation of the Power Company carried on by it for pecuniary gain. Fisk v. Bonner Tie Co., 40 Idaho 304, 232 P. 569; Gifford v. Nottingham, [68 Idaho 330], 193 P. 2d 831; Kirk v. United States, 9 Cir., 1956, 232 F.2d 763. The Power Company was admittedly engaged in the manufacture, transportation, delivery, and sale of electricity. And the re-conduetoring of its transmission lines is not work separate and distinct from the regular business carried on by the Power Company.”
Monsanto was adding to its production capacity. These circumstances together with the aspects of control discussed by the district court compel the conclusion that it is “virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed.” This language connotes something less than actual ownership or actual operation which the majority opinion would require.
I would affirm the judgment.