A contract whereby the owner of timber reserves the right to terminate the contract whenever he chooses and retains control of what, when and where logs are to be cut, even though said contract provides for payment on the basis of a stipulated amount per thousand feet, does not constitute an independent contractor.
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May 1, 1951
Honorable John Shaughnessy
Supervisor of Industrial Insurance
Department of Labor and Industries
Olympia, Washington Cite as: AGO 51-53 No. 32
Receipt is hereby acknowledged of your letter of April 4, 1951, together with copy of agreement signed by Sig A. Anderson and Glenn Mead. In your letter you state:
"We submit herewith a Contract and request your opinion if under the contract the workmen are independent contractors."
The industrial insurance act defines the following terms:
"'Employer' means any person, body of persons, corporate or otherwise, and the legal representatives of a deceased employer, all while engaged in this state in any extrahazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extrahazardous work." (51.02.07, RCW [[RCW 51.08.070]]; § 7675 Rem. Rev. Stat., Chap. 41, sec. 2, Laws of 1939).
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"The word 'workman' means every person in this state who is engaged in the employment of an employer under this title, whether by way of manual labor or otherwise in the course of his employment; also 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 an employer under this title, whether by way of manual labor or otherwise, in the course of his employment." (51.02.18, RCW [[RCW 51.08.180]]; § 7675, 7674-1, Rem. Rev. Stat., Chap. 41, sec. 2, Laws of 1939; Chap. 211, sec. 2, Laws of 1937).
No other definition with reference to independent contractor appears in the act. Our court has on many occasions attempted to define the term "independent contractor." The last expression of the supreme court in which more or less a review of the prior cases was made is the case ofClausen v. Department of Labor & Industries, 15 Wn. (2d) 62. In reviewing the contract which you have submitted the first paragraph reads as follows:
"WHEREAS, Anderson is presently conducting a logging operation and selling timber from various tracts of land in Jefferson and Mason Counties, State of Washington, and Mead is desirous offalling and bucking timber to be sold by said Anderson, as an independent contractor and not as an agent or employee on terms and conditions as hereinafter specified." (Emphasis supplied)
Section 1 reads: "Mead is to fall and buck all of the old growth fir, second growth fir and hemlock timber in a good and sufficient workmanlike manner and to clear all land completely and clearly on such tracts of timber to be designated by said Anderson." (Emphasis supplied)
Section 3: "All draws or advances for timber felled and bucked or to be felled and bucked by said Mead are to be within the sole discretion of Anderson." (Emphasis supplied)
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In paragraph 4 we find the following: "* * * Anderson is at all times to keep said Mead informed as to what tracts, parcels or sections of timber are to be felled and logged; * * *."
When said contract is read as a whole it is apparent that Mead is an employee of Anderson and that an attempt has been made by said contract to create an independent contractor, but that Anderson, the employer, has the full say as to when, where and how long said contract is to be in force or when it is to be terminated. As stated in theClausen case, supra:
"* * * a statement to the effect that no single fact is so conclusive in showing that the relationship is not that of an independent contractor as that the employer has the unrestricted right to terminate the particular service whenever he chooses, without regard to the final result of the work itself."
InGrace v. Magruder, 148 F. (2d) 679, the court said:
"A contractor to be 'independent' must ordinarily exercise an independent employment, business, calling, or occupation, and the absence of such characteristics points strongly to conclusion that a contract is one of hiring and service."
In the case ofTapager v. Birmingham, 75 F. Supp. 375, it was further found:
"Relation of 'independent contractor' generally contemplates obtaining of an agreed end and usually contemplates obtaining of that end within stipulated period, whereas relationship of 'employment' generally contemplates a continuance and indefinite rendering of services, which relationship is terminable either at option of employer or employee without contractual liability."
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There is no doubt from a reading of the contract that the same can be terminated by Anderson at any time by his merely telling Mead that there are no more logs to cut.
It is, therefore, our opinion that the contract which you have submitted with your letter of April 4th does not constitute Mead an independent contractor.
Very truly yours,
Assistant Attorney General