concurring specially:
I concur in the decision of the Court that there was no evidence to sustain the commission’s finding that these loggers were employees rather than independent contractors. However, I think the record does support the finding of the referee that either party could have terminated the arrangement without liability. My disagreement is with the law which has apparently built up over the years, as reflected in Hammond v. Department of Employment, 94 Idaho 66, 480 P.2d 912 (1971), relied upon by the majority. That rule is perhaps best expressed in the case of Beutler v. MacGregor Triangle Co., 85 Idaho 415, 380 P.2d 1 (1963), wherein the Court stated:
“The retained right of discharge of the worker, or the right of either party to terminate the relationship without liability to the other party, is construed to be strong, — perhaps the strongest and most cogent, — indication of retention of the power to control and direct the activities of the worker, and thus to control detail as to the manner and method of performance of the work. This Court in effect has so held in certain of its decisions hereinafter discussed.” 85 Idaho at 422, 380 P.2d at 4.
In my view the inference expressed in that rule is not correct. There is no question but what a party can contract to be an employee for a definite term, with liability imposed for a unilateral termination. Likewise, it is clear that parties can enter into an agreement to create an independent contractual arrangement which is terminable at will by either party. There is no fixed rule stating that an employment relationship is terminable at will, but an independent contractual relationship cannot be terminated unilaterally without a breach of contract. In either case, it depends upon the agreement of the parties and they can agree one way or the other. If that be true, then it is apparent that the rule set out above is not a rule of law in any sense of the word, but is merely a comment by this Court that in its statistical opinion most employment contracts are terminable at will, but most independent contractual relationships are not. I doubt this Court has the wisdom or experience to make that sort of observation.
In my view the third element set out in the majority opinion, i. e., “whether either party would be liable to the other for a peremptory termination of the business relationship” is a fact question dependent entirely upon the agreement between the parties and proves nothing about whether or not the contract creates an employer-employee relationship or an independent contractor-contractee relationship. I disagree with the majority’s conclusion that the record does not support the referee’s finding that either party could have terminated this relationship without liability. However, in my view that finding is totally irrelevant in deciding whether or not it is an employer-employee relationship or an independent contractual relationship. Regardless of that finding, there is no evidence in the record to sustain the determination that it was an employer-employee relationship, and I agree with the conclusion of the majority that the commission erred in so concluding.