ARCHIE STEWART, Appellant, v. JACK HAMMOND et al., Respondents
No. 41171
En Banc
July 2, 1970
471 P.2d 90
FINLEY, ROSELLINI, HAMILTON, HALE, NEILL, and STAFFORD, JJ., and HILL and DONWORTH, JJ. Pro Tem., concur.
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C. Orno Shoemaker, for appellant.
S. Dean Arnold, for respondents.
Archie Stewart, the appellant, lived in Lewiston, Idaho and pursued the trade of carpentry both in Idaho and nearby Clarkston, Washington. During the time here involved he was not registered as a contractor pursuant to
The respondents, Mr. and Mrs. Hammond, engaged appellant to make minor repairs and alterations to their home in Clarkston. It was orally agreed that appellant would furnish all labor and procure material necessary for the undertaking. Appellant was to be reimbursed for his actual costs and paid an hourly wage for his personal labor. As frequently happens, the job expanded into a major project. During the 9 weeks that followed, appellant made numerous purchases of materials, hired four helpers, and employed several other contractors to perform specialty services.
As the work progressed, respondents made partial payments from which appellant paid for the materials and labor as agreed. However, when appellant submitted his final statement for $2,405.81, respondents felt it was excessive and refused to pay more than $1,800. Appellant filed a claim of lien for the balance and brought this action to foreclose the lien.
The trial court granted respondents’ motion to dismiss at the end of appellant‘s case because of his failure to allege and prove that he was registered as a contractor.1
The trial court also found that appellant was not relieved from compliance by
The sole issue presented by 7 of appellant‘s 10 assignments of error is whether his lack of registration precludes recovery.
The trial court held that funds received by appellant for the payment of laborers, specialty contractors and materialmen were “compensation” in excess of wages. It concluded that appellant was not entitled to the benefit of
[1] It is not necessary for us to resolve the issue posed by appellant. Contrary to his suggestion,
Appellant classified himself as “self-employed” and as a “sole proprietorship” in his federal income tax returns. He made his own provision for social security and self-employment taxes rather than having them withheld by an employer. No payroll relationship common to wage earners existed between appellant and respondents. He performed his work in the pursuit of an independent business as he
The common law definition of “independent contractor” is not applicable because a specific statutory definition has been adopted. Furthermore, foreign authority is not helpful because little uniformity exists in either the content or application of the various “contractor registration” statutes.3 Each case rests on its own peculiar fact pattern or its own unique statutory language.
Clearly, appellant was a “contractor” within the meaning of
A “contractor” . . . is any person . . . who . . . in the pursuit of an independent business undertakes to . . . construct, alter, repair, add to, subtract from, improve . . . for another, any building . . . or other structure . . . attached to real estate or to do any part thereof . . . or works in connection therewith;
Inasmuch as appellant falls within the specific language of the statutory definition, he is not entitled to the exclusionary benefit of
The statute was designed for protection of the public. The overriding public policy must not be defeated by an attempt to accommodate one who has violated its specific provisions, albeit unwittingly.4 The law will be nullified if noncomplying contractors are permitted to evade the statute by a claim of “unwitting violation” or “undue loss” or by a claim that the other contracting party will be “unduly enriched“. Every noncomplying contractor could raise one or all of the suggested defenses. The remedy for those who find themselves in the position of appellant lies with the legislature.
Appellant‘s remaining assignments of error relate to the trial court‘s rejection of his proposed findings of fact 2, 3, 4 and 5. None were set out verbatim in his brief as required by ROA I-43. The assignments of error will not be considered. El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 376 P.2d 528 (1962).
The trial court is affirmed.
HUNTER, C. J., FINLEY, ROSELLINI, and HAMILTON, JJ., concur.
NEILL, J. (concurring)—This action to foreclose a labor and materialman‘s lien under
under the act and had made no attempt to comply with the requirements thereof.
At the conclusion of plaintiff‘s case the trial court granted defendants’ motion to dismiss. In so doing, he weighed the evidence and entered findings of fact. CR 41 (b) (3); see N. Fiorito Co. v. State, 69 Wn.2d 616, 419 P.2d 586 (1966). It is clear from the record that the dismissal was based on findings that plaintiff was a contractor within the terms of
Where the trial court has weighed the evidence our function is to determine whether there is substantial evidence to support his findings and, if so, whether those findings support the conclusions of law and judgment. Enterprise Timber, Inc. v. Washington Title Ins. Co., 76 Wn.2d 479, 457 P.2d 600 (1969). Further, it is settled principle that the trial court will be affirmed if there is any theory to support the judgment even though we may disagree with the basis enunciated by the trial court. National Indem. Co. v. Smith-Gandy, Inc., 50 Wn.2d 124, 309 P.2d 742 (1957). Guided by these principles, I concur in the majority‘s affirmance even though I am not in agreement with its reasoning. The considerations involved in the interpretation of the contractor‘s registration act are of sufficient importance to belabor the bar with my reasons for disagreeing with the approach taken by the trial court and the majority of this court.
As the majority observes, the contractor‘s registration act (
The majority states that the factual question is to be resolved simply by reference to the definition of “contractor” in
In relevant part,
A “contractor” . . . is any person . . . who . . . in the pursuit of an independent business undertakes to . . . construct, alter, repair, . . .
As I read it, the above subsection neither seeks nor manages to achieve a substitute for our traditional means of ascertaining whether a given party in a given situation occupies the status of employee or independent contractor. The subsection is a limitation, not a definition. It limits the statute‘s applicability to those who, in the pursuit of an independent business, engage in the enumerated activities. But who is a “person . . . in the pursuit of an independent business“? That essential term is not defined in the statute—a fact which leaves the courts to common law considerations. In effect, the statute limits its scope to a portion of the larger group of independent contractors under common law, and does nothing to alter or supplant the considerations
The trial court found (1) that plaintiff was a contractor and (2) that he was not an employee with wages as his sole compensation because reimbursement for materials and other labor expenses constituted compensation other than wages. Although I view the latter finding to be contrary to the principles enunciated in State ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162 (1941), the issue is not determinative of this case. As I will point out, if the trial court‘s finding that plaintiff was a contractor within the terms of the act is correct, the second finding becomes unnecessary.
The majority reaches the conclusion that plaintiff was a contractor within
The factors relied upon by the majority can be supplied by any worker who, in his general business, acts as an independent contractor. However, these factors, while relevant evidence of intent, are not determinative of a worker‘s specific status on a particular job. We have previously stated that the question of whether one is an employee or an independent contractor, in a given situation, depends to a large degree upon the facts and circumstances of the particular transaction and the context in which they must be
The majority‘s reasoning seems to be that
I believe that the correct approach is first to determine whether the worker—under the facts and circumstances of the particular relationship—has acted as an independent contractor or as an employee.7 Then inquiry turns to the statute. If the worker is identified as an independent contractor, it must be determined whether he engaged in the activities enumerated in
Plaintiff claims the status of an “employee with wages as his sole compensation,” and thus within the exclusion provided by
Returning then to the point on this appeal, the question is whether the trial court‘s finding that plaintiff was, in
In determining, in a given situation, whether one performs services for another as an employee or as an independent contractor, there are several factors or elements which should be taken into consideration. These are listed in Restatement (Second), Agency § 220 (2) (1958), as follows:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
All of the factors listed are of varying importance in making the determination. With the exception of the element of control, however, it is not necessary that all remaining factors be present, for no one factor is conclusive and, in the final analysis, all directly or indirectly relate to, or inferentially bear upon, the crucial factor of control or right of control resident in the employer or principal. Miles v. Pound Motor Co., supra. [10 Wn.2d 492, 117 P.2d 179 (1941).] It is sufficient, then, if enough of the remaining factors are present, in favorable force, to permit an appropriate determination of whether or not the employer or principal exercised or retained any
right of control over the manner, method, and means by which the work involved was to be performed and the desired result was to be accomplished.
Here, the record, though barely adequate, does contain facts from which can be drawn an inference that, though defendants were usually nearby and directing that various things be done, plaintiff was in control of the physical manner and method by which these jobs would be accomplished. As to factor (b) of Hollingbery, plaintiff, a carpenter, was engaged in a distinct occupation from that of defendant, a school teacher. As to other factors: (d) plaintiff‘s work for defendants required the special skills of a carpenter and builder, (e) plaintiff supplied his own tools, (f) plaintiff was hired for only the length of time it took to complete the project, (h) the work involved was not a part of defendants’ regular business, and (j) defendants, in their dealings with plaintiff, were not “in business” but acted as private parties.
The record provides ample support for the trial court‘s finding that plaintiff was an independent contractor in his relationship to the defendants. No other questions are raised in this appeal. Accordingly, I agree with the result reached by the majority although, as previously discussed, I disagree with its reasoning.
HALE and MCGOVERN, JJ., concur with NEILL, J.
Notes
“No person engaged in the business or acting in the capacity of a contractor may bring or maintain any action in any court of this state
“This chapter shall not apply to:
“. . .
“(15) Any person who engages in the activities herein regulated as an employee with wages as his sole compensation; . . .” (Italics ours.)