Shawcroft v. Standard Accident Insurance

I dissent.

It has long been the rule in this state that insurance policies are construed most strongly in favor of the insured and against the insurer; Buckley v. Massachusetts Bond InsuranceCo., 113 Wn. 13, 192 P. 924; and in Guaranty Trust Co. v.Continental Life Ins. Co., 159 Wn. 683, 294 P. 585, we held that, if an insurance policy is fairly susceptible of two interpretations, it would be liberally construed in favor of the insured.

We should not consider respondent, unversed in technical knowledge, bound by the answer she gave to the court that she supposed she was an employee. That is a mixed question of law and fact which is often vexing to the courts. Almost every case depends upon its own facts and circumstances.

The trial court found that the Salvation Army is a religious and charitable organization, operating without profit for religious and charitable purposes, and that it has no "trade, business, profession, or occupation" to which those words as used in the policy could apply.

We have said:

"Whether a person performing work for another is performing it as an independent contractor or as the servant or employee of that other is a question not always easy of solution, but all of the authorities agree that the test of the relationship is the right of control on the part of the employer. Thus in 26 Cyc. 1546, an independent contractor is defined as follows:

"`An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.'" Glover v.Richardson Elmer Co., 64 Wn. 403, 116 P. 861.

The sole duty of respondent was to distribute four hundred copies of the current weekly issue of the War Cry in the territory of Montesano at ten cents per copy, if she could get that sum, or if not, she agreed to give them away. For that she was to receive 1 1/2c per copy, or a total of six dollars for each week's work, and was responsible only for the result.

Many cases are cited and could be discussed touching the question of employment and independent contract, but there is nothing in this case that makes respondent an employee any more than the ordinary newsboy who takes so many newspapers to sell on the streets and accounts for those sold and unsold. That certainly would not make a newsboy an employee of the publisher.

Simila v. Northwestern Improvement Co., 73 Wn. 285, 131 P. 831, is quoted by appellant to the effect that

"If the employer may control the manner of doing the work, the relation of master and servant exists, no matter what terms may have been agreed upon as to the method of payment."

The test lies in whether or not the contract reserved to the proprietor the power of control over the employee. That is a correct statement of the law under our own decisions, but the court also there held, as we have often held, that an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the result of the work. We so decided in Machenheimer v.Department of Labor and Industries, 124 Wn. 259, 214 P. 17. The question was further discussed and the authorities reviewed in Burchett v. Department of Labor and Industries, 146 Wn. 85,261 P. 802, 263 P. 746, and the distinction made in Swamv. Aetna Life Ins. Co., 155 Wn. 402, 284 P. 792.

In the case at bar, while it is true that respondent received a pittance every week for selling War Crys and could be discharged at any time her superior saw fit, no one controlled the manner in which she sold War Crys or assumed so to do. She had entire liberty of action in that respect. She was responsible only for the result of disposing of four hundred War Crys in her field of action. That being true, it seems clear that she was not an employee of the Salvation Army, but an independent contractor.

In addition to the Glover, Simila, and Machenheimer cases cited, supra, cf. Dishman v. Whitney, 121 Wn. 157,209 P. 12, 29 A.L.R. 460; Pyle v. 2-Miracle Concrete Corporation, 126 Wn. 384, 218 P. 246, and Wilson v. Times Printing Co., 158 Wn. 95, 290 P. 691.

The judgment should be affirmed.

BLAKE, J., concurs with HOLCOMB, J.