Burdick v. Thornton

*874BAKES, Justice,

dissenting:

The majority acknowledges that the Industrial Commission erred in finding that the Thorntons’ investment in the horse training arena suggests' an employer-employee relationship. As we stated in Ross v. Fiest, 105 Idaho 119, 666 P.2d 646 (1983), “Every principal contractor necessarily extends to a subcontractor the right to do work on the involved premises, and the principal does not thereby necessarily change the status of a subcontractor to the status of an employee.” Id. at 120, 666 P.2d at 647. After recognizing the commission’s error, the majority goes on to state that “there is enough evidence, aside from the financial investment in the arena, to establish right to control and thus an employment relationship in this case.” Therein I believe the majority errs.

In Ross v. Fiest, supra, this Court clearly stated, “When erroneous evidence is considered in arriving at a factual decision, particularly where the ultimate factual issue is as close as the issue in this case, the cause should be remanded to the factfinder to reconsider the factual issue without the erroneous evidence.” 105 Idaho at 120, 666 P.2d at 647. See also, Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 419, 353 P.2d 657, 662 (1960). Therefore, even if the majority is correct in its conclusion that “there is enough evidence, aside from the financial investment in the arena, to establish right to control and thus an employment relationship in this case,” it is not for this Court, an appellate body, to weigh the evidence. Rather, this matter should be reversed and remanded to the Industrial Commission, “to reconsider the factual issue without the erroneous evidence,” Ross v. Fiest, supra, 105 Idaho at 120, 666 P.2d at 647.

On a separate issue the majority states, as did the Industrial Commission in its conclusions of law, that an agreement between the parties is not necessarily determinative of the nature of the relationship between the parties. Both the majority and the commission rely on Beutler v. MacGregor Triangle Co., 85 Idaho 415, 380 P.2d 1 (1963), to support this proposition. Upon careful reading, however, Beutler stands only for the proposition that the mere characterization of a person as an “independent contractor” in an employment contract does not conclusively indicate that the party is an independent contractor. The remaining provisions in the contract must be evaluated to determine what the true nature of the arrangement is. The Court in Beutler made several references to the other contract terms as “indicia” of thé nature of the relationship between Beutler and MacGregor Triangle Co. See Beutler v. MacGregor Triangle Co., 85 Idaho at 420-421, 380 P.2d at 4. The Court’s consideration of the other terms of the contract as indicia of the nature of the parties’ relationship is consistent with other case law. See Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960); Wilcox v. Swing, 71 Idaho 301, 230 P.2d 995 (1951).

A fair reading of the record before us indicates that in this case the Industrial Commission failed to properly consider the terms of the agreement executed between the parties. I am unable to see how the commission could rule as to the nature of the parties’ relationship here without a full consideration of the terms of their agreement. It is well established that the question whether the relationship is that of employer-employee or contracting principal and independent contractor, is a question of the parties’ intent, which is to be determined from all the facts and circumstances established by the evidence. Merrill v. Duffy Reed Construction Co., 82 Idaho at 419, 353 P.2d at 662; Hansen v. Rainbow Mining & Milling Co., 52 Idaho 543, 547, 17 P.2d 335, 337 (1932). Clearly, the terms of the parties’ contract, while not conclusive, represent the most important evidence to be considered in determining the intent of the parties. This becomes particularly obvious when one carefully considers the right to control test used to determine whether an individual is an independent contractor. The right to control test requires an examination of whether the contract gives, or the employer assumes, the right to control the time, manner and meth*875od of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. Ledesma v. Bergeson, 99 Idaho 555, 558, 585 P.2d 965, 968 (1978). Thus, while other evidence is to be considered in determining whether the employer has assumed the right to control, it is the contract between the parties which is the starting point for a determination of the parties’ intent and the basic relationship between them.

In this case, the commission’s only reference to the parties’ contract was their passing comment that under the Beutler case the agreement was not necessarily determinative, nor were they bound by it. I believe that statement by the commission reflects a basic evidentiary misunderstanding of the important role which the agreement between the parties plays in a determination of whether or not the relationship is employer-employee or principal and independent contractor. In this case, important probative evidence on this issue was contained in the parties’ agreement, which I believe the commission neglected to consider. That fact, coupled with the commission’s erroneous evaluation of the Thorn-tons’ investment in the horse training arena as evidence suggesting an employment relationship requires that this case be remanded to the Industrial Commission for reconsideration. On reconsideration, the commission (1) should not consider the owners’ investment in the arena as evidence of an employer-employee relationship, and (2) should consider the agreement between the parties as the most important, albeit not conclusive, evidence in determining whether the parties’ arrangement was an employer-employee relationship, or a principal-independent contractor relationship.

I would reverse and remand for a new determination free from the errors described above.

DONALDSON, C.J., concurs.