IN THE SUPREME COURT OF THE STATE OF MONTANA 

DEBRA L. CARLSON, 

VS. 

JERRY CAIN, 

Claimant and Respondent, 

Employer and Appellant, 

LEE ENTERPRISES, d/b/a 

THE BILLINGS GAZETTE, 

Employer and Appellant, 

and 

HARTFORD ACCIDENT AND 

INDEMNITY COMPANY, 

Defendant and Appellant. 

Appeal from: Workers' Compensation Court 

Hon. Tim Reardon, Judge presiding 

Counsel of Record: 

For Employer, Defendant and Appellants; 

Moulton, Bellingham, Longo & Mather, Billings, 

Montana 

Randy H. Bellingham argued, Billings, Montana 

For Claimant and Respondent: 

Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, 

Montana 

Neil S. Keefer argued, Billings, Montana 

For Respondent and Cross-Appellant: 

Anderson, Brown, Gerbase, Cebull & Jones, 

Billings, Montana 

Steven J. Harman argued, Billings, Montana 

Filed: JUN 8 

submitted: February 28, 1983 

~ecided: June 8, 1983 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Employer, Lee Enterprises, d/b/a The Billings Gazette 

(Gazette) appeals from a decision of the Workers' 

Compensation Court finding claimant, Debra Carlson, entitled 

to receive Workers' Compensation benefits from the Gazette's 

insurer, following her injury in an automobile accident while 

delivering newspapers for her fiance, Jerry Cain. The 

court's decision was based on its conclusions that claimant 

was an employee of Cain; that Cain was an employee of the 

Gazette, and that he had failed to provide Workers' 

Compensation insurance for claimant, rendering the Gazette 

liable for claimant's benefits under Section 39-71-405(2), 

MCA . Cain cross-appeals. We affirm the Workers' 

Compensation Court. 

The following issues are presented to this Court for 

review: 

1. Whether Debra Carlson was an employee of Jerry Cain. 

2. If Debra Carlson was an employee of Jerry Cain, 

whether such employment is specifically excluded under the 

following exceptions contained in Section 39-71-401(2) MCA: 

(a) Casual employment; 

(b) Employment of members of an 

employer's family dwelling in the 

employer's household; 

(c) Employment of sole proprietors or 

working members of a partnership; 

(d) Any person performing services in 

return for aid or sustenance only. 

3. Whether Jerry Cain and Mike Cain were independent 

contractors of The Billings Gazette? 

In November 1979, claimant met Jerry Cain in Miles City. 

They became engaged during the Christmas season of 1979 and 

began living together toward the end of December 1979. Jerry 
Cain was married to another woman at the time; that marriage 

was not dissolved until February 22, 1981, because of a 

prolonged custody dispute. Between January of 1980 and the 

end of March, 1980, claimant occasionally rode with Cain 

while he delivered newspapers for Dave Gamble, who had 

carrier contracts with the Gazette. During this period, 

Cain, who also worked as a mechanic, made all of the house 

payments, paid all utilities and provided groceries for 

claimant and himself. He also provided claimant with the use 

of an automobile he owned. During this time, claimant sang 

in a band on weekends, earning approximately $100 per week. 

On March 31, 1980, when Dave Gamble's carrier contract 

expired, Jerry Cain and his father, Mike Cain, signed one 

contract with the Gazette to haul n.ewspapers from Billings to 

Fairview, Montana, and all drop points between, and another 

similar contract to deliver papers from Miles City to Baker. 

Mike Cain signed the contract and, several weeks later, after 

the bank turned down Jerry Cain's application for a loan, 

took out a bank loan, which Jerry Cain co-signed. All 

evidence indicates Mike Cain's only involvement was to help 

get his son started as a carrier for the Gazette. Neither 

the bank nor the Gazette would accept only Jerry Cain's 

signature. Gazette checks were made out to both Michael and 

Jerry Cain to insure payment on the bank loan. Mike Cain 

himself never profited from the contract, nor did he perform 

any of the work under the contract. 

The contracts included the following provisions: 

SECTION 111. RELATIONSHIP OF PARTIES 

11 The parties intend that an independent 

contractor-employer relationship will be created by 

this contract. The company is interested only in 

the results to be achieved, and the conduct and 

control of the work will lie solely with the 

carrier. The carrier is not to be considered an 

agent or employee of company for any purpose, and 
the employees of carrier are not entitled to any of 

the benefits that the company provides for company 

employees. The company does not control the 

carrier in any of the details of performance of 

this agreement nor does it control the routes to be 

traveled or the hours of employment or the manner 

in which the duties of the carrier are performed." 

SECTION IV. LIABILITY 

'1 The work to be performed under this contract 

will be performed entirely at carrier's risk, and 

carrier assumes all responsibility for the 

condition of his equipment used in the performance 

of this contract. Carrier will carry, -- for the 

duration of this contract, public liabilit 

insurance -- 17 an amount acceptable - to company, - ant 

Workmen's Compensation insurance covering - his 

employees. Contractor agrees to indemnify company 

for any and all liability, loss or claims arising 

in any way out of the performance of this 

agreement." (Emphasis supplied.) 

The two contracts provided for Cain to be paid a total 

$6,470 per month. He was paid bi-monthly. 

After the Cains were awarded the contract, claimant 

began delivering papers to Baker for Jerry Cain three or four 

times a week. Occasionally she would make the run to 

Fairview instead of Baker. When claimant did not make the 

run, Cain had to hire someone else, whom he paid $15 for the 

Baker run and $30 for the Fairview run. Claimant was not 

paid any money for making the runs, nor did she receive 

anything more in the way of support than she had received 

prior to Cain's receiving the carrier contracts. In May, 

according to claimant, she discontinued singing in the band 

"because Cain said we could make more money running the 

Gazette route than I could in the band." According to Cain, 

the other members of the band "said they didn't need her 

anymore. " 

On June 28, 1980, Carlson suffered severe head injuries 

in an automobile accident; she was driving a 1979 Mazda 

furnished by Cain and was returning to Miles City early in 

the morning, after having delivered a load of newspapers to 
Baker. As a result of her injuries, claimant, still in her 

early twenties, has muscular weakness on the left side, some 

intellectual impairment, and severe headaches. Her throat 

injuries have affected her ability to sing. She is currently 

considered unemployable and is attending a vocational 

training school. She is living with her mother; Cain has 

married someone else. At the time claimant was injured, Cain 

was carrying no Workers' Compensation insurance, although the 

carrier contract expressly required him to do so. 

Claimant filed a claim against Jerry Cain with the 

Uninsured Employers' Fund. Following an investigation, her 

claim was denied under Section 39-71-401(2) (f), MCA, on the 

grounds that claimant was "performing a service in return for 

aid or sustenance only," and was thus exempted from the 

Workers' compensation Act. Claimant subsequently filed two 

petitions for hearing with the Workers' Compensation Court, 

one against Jerry Cain and the Uninsured Employers' Fund, the 

second against Lee Enterprises, d/b/a The Billings Gazette 

and their insurance carrier, Hartford Accident and Indemnity. 

The two cases were consolidated on July 9, 1981. Trial was 

held November 20, 1981. Claimant and the Gazette moved the 

court to dismiss without prejudice as to the Uninsured 

Employers' Fund, which was bankrupt; the motion was granted. 

The court ordered additional depositions, briefs, and 

proposed findings. 

The Workers' Compensation Court entered judgment for 

claimant on April 23, 1982, concluding that Jerry Cain was 

not an independent contractor, but an employee of the 

Gazette; that claimant was an employee of Jerry Cain under an 

implied contract for hire, Section 39-71-118, MCA; and that 

the Gazette's insurer was liable for claimant's medical 

expenses, and wage benefits amounting to $100 per week, under 
Section 39-71-405(2), and 39-71-118, MCA. The Gazette 

appeals. Cain cross-appeals, limiting his appeal to 

challenging claimant's status as his employee. 

We note that where, as here, both facts and legal 

conclusions are disputed, two standards of review are 

appropriate: 

"When presented with an issue which challenges the 

sufficiency of the evidence to support the court's 

findings or challenges the credibility of that 

evidence, the scope of our review is limited. 

"Our function in reviewing a decision of the 

Workers1 Compensation Court is to determine whether 

there is substantial evidence to support the 

findings and conclusions of that court. We cannot 

substitute our judgment for that of the trial court 

as to the weight of the evidence on questions of 

fact. Where there is substantial evidence to 

support the findings of the Workers' Compensation 

Court, this Court cannot overturn the decision. 

Bond v. St. Regis Paper Co. (1977), Mont., 571 P.2d 

372, 34 St.Rep. 1237; Robins v. Anaconda Aluminum 

Co. (1978) , Mont., 575 P.2d 67, 35 St.Rep. 213. ' 

Stef fes v. 93 Leasing Co., Inc. [U. S .F. & G. Co. 1 

(1978), Mont. 580 P.2d 450, 452, 453, 35 St.Rep. 

816. 

"When, however, presented with an issue which 

raises only a question of law 'an appellate court 

is not bound by the findings of the trial court, 

but is free to draw its own conclusions from the 

evidence presented.' Walsh v. Eberlin (1977), 114 

Ariz. 342, 560 P.2d 1249, 1251; Sapp v. Barenfeld 

(1949), 34 Cal.2d 515, 212 P.2d 233, 236." Sharp v. 

Hoerner Waldorf Corp. (1978), 178 Mont. 419, 

422-23, 584 P.2d 1298, 1300. 

In Sharp, the facts were relatively undisputed, the 

question presented was one of law, and appellant "[did] not 

seek a reweighing of the evidence, rather a reversal for 

failure to apply the proper standard of law." Sharp, 178 

Mont. at 423-24, 584 P.2d at 1301. That is not the case 

here, where certain factual questions decided by the Workers' 

Compensation Court are challenged on appeal. To the extent 

that factual determinations are questioned, we apply the 

Steffes test, and defer to the fact-finder where substantial 
evidence exists to support its determinations. As noted in 

Woody v. Waibel (1976) 276 Ore. 189, 554 P.2d 492, 494, N. 3: 

"It is true that there may be questions concerning 

facts surrounding the arrangements between the 

parties which would be relevant in determining 

control. In this sense, the question is one for 

the trier of fact. However, where there is no 

dispute as to what the arrangement is, the question 

of employee or independent contractor status is one 

of law for the court. l1 

Both Jerry Cain and the Gazette challenge the conclusion 

of the Workers1 Compensation Court that claimant was Cain's 

employee. The court recognized that employment status can be 

established in part by the existence of a contract for hire, 

and that such a contract may be "express or implied, oral or 

written." Section 39-71-118, MCA. The court concluded that 

an implied contract for hire existed, stating: 

"The fact that nothing was said about pay before 

services were rendered by the claimant does not 

negate an implication that Jerry Cain was obligated 

to pay a reasonable amount for claimant's services 

performed for and accepted by Jerry Cain. In 

addition, claimant testified that since she and 

Jerry Cain were engaged she did not expect wages 

because she thought they were going to be married. 

It is the conclusion of this Court that claimant 

exchanged her delivery services for the use of a 

vehicle, room and board, and the expectation of 

financial security from her impending marriage. 

Under these circumstances a contract of hire may 

certainly be implied. See 1C Larson, Workmen's 

Compensation Law, S47.43. . ." 

Cain and the Gazette argue that, since Cain and claimant 

were already enga.ged, and Cain had paid for food and rent and 

furnished claimant with a car before she started driving for 

him, claimant was not actually paid for her work, i.e., there 

was no increase in benefits or expectations. They also argue 

that Cain exercised no control over claimant; she was not 

required to drive. They emphasize that the fine assessed by 

the State against Cain for his failure to carry Worker's 
Compensation Insurance for his employees did not include a 

penalty for his failure to insure claimant. 

We are not persuaded by Cain's and the Gazette's 

arguments, for several reasons. It is true that a "contract 

for hire," contemplates the worker's being paid; as Larson, 

Workmen's Compensation Law, Vol. lC, ~;47.00(c), p. 8-231, 

states: 

"Gratuitous servants are not employees, since the 

element of 'hire' is lacking; but payment may be 

found in anything of value such as board and 

lodging, and an agreement to pay is usually implied 

when the parties have omitted to make an express 

agreement on payment." 

While section 39-71-401 (2) (f) , MCA, exempts from 

coverage those persons working for aid or sustenance only 

unless both employer and insurer elect to cover them, we find 

other considerations apply in the case at bar. Here, there 

was no express agreement on payment between claimant and 

Cain, but claimant worked virtually full-time for Cain doing 

a portion of the work for which he received $6,470 per month. 

Her work saved Cain the $15 to $30 per night he would have 

had to pay someone else to make the run. Claimant expected 

to marry Cain, and to share his life; her activities helped 

assure that Cain's livelihood would provide future financial 

security for her as well. Although this is a very close 

decision, we find sufficient evidence to support the Workers1 

Compensation Court's conclusion that, claimant reasonably 

expected a benefit to flow from her work beyond those 

benefits she already enjoyed as Cain's fiance. 

Appellants' argument -- that claimant received nothing 

more than she had before she began driving regularly for Cain 

-- is an argument that cuts both ways. If claimant received 

board, room, a car, and continued expectation of marriage 

merely as part of sharing Cain's home with him, she would 
reasonably expect to be paid considerably more than that for 

contributing a good share of the work for which Cain brought 

in almost $6,500 a month. 

Indeed, the record indicates that claimant - did expect to 

be paid something for her work. The transcript contains the 

following statements by claimant: 

[on direct] 

"Q. Now, did Jerry pay you any money for this work 

you were doing for him? A. No. 

"Q. What was your understanding about getting 

paid, if you had an understanding? A. I never 

really had an understanding. I just assumed he 

would pay me. 

"Q. [on cross-examination] Okay. Thank you, 

Debra. So you didn't really assume that he was 

going to pay you any money, did you? A. When I 

first started out, I did. 

"Q. When did you first start? A. Boy, March or 

April. 

"Q. Well, did that change? That obviously changed 

then? A. What changed? 

"Q. Well the fact that you thought you were going 

to get money? A. I still thought he might pay me 

something or something." 

The record establishes that claimant furnished valuable 

driving services to Cain; she reasonably expected payment 

beyond those benefits which were just a part of her living 

arrangement. Under these circumstances an implicit agreement 

to pay may be and properly was inferred in the absence of an 

express agreement on payment. Larson Vol. lC, S47.00 (c) p. 

8-231. We find there is sufficient evidence here to 

establish a contract for hire under section 39-71-117, and 

39-71-118, MCA. 

In Montana, the other test to determine whether employee 

status exists is the "control test," under which the right to 

control details of the individual's work is decisive. State 
ex rel. Ferguson v. District Court (1974) 164 Mont. 84, 88, 

519 P.2d 151, 153. In Ferguson, while recognizing that the 

test is most frequently used to determine whether or not 

independent contractor status exists, we noted that it "may 

be used to also determine who the employer is . . ." 164 

Mont. at 88, 519 P.2d at 153. Similarly, here, the test may 

be used to determine whether employee status existed at the 

time a claimant was injured. This broad overlap in the test 

for distinguishing between an employee and an independent 

contractor, and the test for determining whether employee 

status exists, is explained by Larson, Vol. lC, S43.20, p. 

"The definition of employment status almost always 

takes the form of distinguishing an employee from 

an independent contractor. The reason is simple. 

If one wants to get something done without doing it 

oneself, there are really only two ways open: to 

hire an employee to do it, or to contract out the 

work to an independent entrepreneur. The 

employee-independent contractor distinction is not 

an artificial dichotomy invented by legal minds 

interested in fine distinctions for their own sake. 

It is a fundamental fact of business life which 

could not be abolished by the most grandiose 

legislation." 

The four factors to be considered under the "control 

test" are those articulated in Sharp; supra see also Larson 

Vol. lC, S44.10 p. 8-19. The factors include: (1) direct 

evidence of right or exercise of control; (2) method of 

payment; (3) furnishing of equipment; and (4) right to fire. 

Employment status can be established on the strength of any 

one of the factors, Sharp 178 Mont. at 425, 584 P.2d at 1302. 

Appellants make much of evidence that claimant was not 

required to deliver papers for Cain. While that option has 

some bearing on the extent of direct control exercised by 

Cain, it does not alter the fact that when she did deliver, 

claimant used Cain's vehicle and was obligated to do for Cain 

the same work the Gazette required of Cain, work which Cain 
now argues (and we agree -- Issue 111) establishes him as an 

employee of the Gazette. What is more, Cain could have 

"terminated" claimant at any time, by refusing her the use of 

his vehicle, hiring somone else to make the run or doing it 

himself. On the strength of the presence of three out of 

four factors listed in Sharp as indicating control, we find 

that the Workers' Compensation Court did not err in its 

conclusion that claimant was an employee of Jerry Cain. 

The Gazette argues that, even if an employer-employee 

relationship existed between claimant and Cain, the 

exemptions under section 39-71-401 (2) (b) , (c) , (dl, and (f) , 

MCA, bar recovery under the Workers' Compensation Act. 

Section 39-71-401(2), MCA, provides, in pertinent part: 

"(2) Unless the employer elects coverage for these 

employments under this chapter and an insurer 

allows such an election, the Workers' Compensation 

Act does not apply to any of the following 

employments: 

(a) . . . 

(b) casual employment as defined in 39-71-116 (3) ; 

(c) employment of members of an employer's family 

dwelling in the employer's household; 

(d) employment of sole proprietors or working 

members of a partnership; 

(f) any person performing services in return for 

aid or sustenance only; 

We agree with the Workers' Compensation Court that none of 

these sub-sections applies to claimant. 

"Casual employment" is defined in section 39-71-116 (3) , 

MCA, as "employment not in the usual course of trade, 

business, profession or occupation of the employer." When 

claimant delivered papers for Cain, she was doing work which 
was, beyond question, in the usual course of Cain's 

occupation. Cain's only occupation at the time of claimant's 

accident was to deliver papers for the Gazette. Exemption 

(b) does not apply. 

The Workers1 Compensation Court properly rejected 

exemption (c), noting, "A common law marriage cannot be 

imputed to their relationship when Jerry Cain was at that 

time married to another woman and claimant was aware of it." 

Jerry Cain's prior marriage was not dissolved until eight 

months after claimant's accident. Exemption (c) does not 

apply 

The Workers1 Compensation Court also properly rejected 

exemption (d), because "[tlhe evidence establishes that 

claimant was not a sole proprietor, nor was she a member of a 

partnership. Her name does not appear in the Gazette 

contracts, the titles to the vehicles, or the checks paid by 

the Gazette to the contractors. There was no evidence of any 

kind of a partnership agreement between Jerry Cain and 

claimant." On review, we find the evidence supports this 

conclusion. We are not persuaded by the Gazette's claim that 

claimant and Cain were working together as "a husband and 

wife team, almost like a partnership. l1 Exemption (d) does 

not apply. 

Finally, we approve the trial court's conclusion that 

the "aid or sustenance" exemption, (f), refers to "board and 

room." This conclusion is consistent with that of Norman 

Grosfield, Montana Workers1 Compensation Manual S2.11, p. 4. 

("The Division of Workers1 Compensation considers this 

provision as applying to individuals who work for only board 

and room.") As noted, infra, the evidence supports the trial 

court's conclusion that claimant worked for financial 

security in her anticipated marriage to Cain; and claimant's 
own testimony indicates her reasonable expectation that Cain 

would pay her something. As claimant points out, she was not 

just doing housework and cooking in exchange for room and 

board. She was working virtually full-time outside the home 

for Cain. Her reasonable expectations exceeded room and 

board. We hold, therefore, that the "aid and sustenance" 

exemption does not apply. 

The third argument made by the Gazette is that Jerry 

Cain was an independent contractor of the Gazette, within the 

meaning of section 39-71-120, MCA, which provides: 

"An 'independent contractor' is one who renders 

service in the course of an occupation and: 

''(1) has been and will continue to be free from 

control or direction over the performance of the 

services, both under his contract and in fact; and 

" (2) is engaged in an independently established 

trade, occupation, profession, or business." 

In Sharp, supra, we considered the difference between an 

employee and an independent contractor. 

"'The test to determine whether or not an 

employer-employee relationship exists . . . is the 

so called control test. Under that test an 

individual is in the service of another when that 

other has the right to control the details of the 

individual's work.' State ex rel. Ferguson v. 

District Court (1974), 164 Mont. 84, 88, 519 P.2d 

151, 153. Respondent has argued an employer must 

control the details of a performance before the 

performer is considered an employee. However, the 

determinative test is based on the right, not just 

the exercise, of control. Larson, Workmen's 

Compensation - Law, Vol. lA, S44.10, p. - 8-19; 

Ferguson, supra." Sharp, 178 Mont. at 424, 584 

P.2d at 1301. 

The four factors used in determining right of control, 

are as noted, infra: (1) direct evidence of right or 

exercise of control; (2) method of payment; (3) furnishing of 

equipment; and (4) right to fire. 

Jerry Cain received payment every two weeks. Generally, 

payment by time tends to show employment, while payment by 
completed project tends to indicate an independent 

contractor. Payment by piece-work or by commission is 

consistent with either status. Larson, Vol. lC, 544.33, p. 

8-73. 

Section V of the contract provided the Gazette with the 

right to terminate the contract upon thirty days' notice in 

writing. This is not particularly significant, since the 

employer of an independent contractor may require 

satisfaction in the end result, and may terminate for breach 

of contract when that requirement is not met. Termination at 

will or for failure to perform certain details unrelated to 

the end result would strongly support employee status, 

Larson, Vol lC, 544.35, p. 8-116 et seq. 

The papers were available at the Gazette loading dock in 

Billings between 11:OO p.m. and 12:OO a.m. It would 

generally take around forty-five minutes to load the papers 

into Cain's truck. Several drops were required on the trip 

to Sidney, a distance of 300 miles. Jerry Cain testified 

that Mr. Stubblefield of the Gazette told him to have the 

papers in Sidney no later than 6:30 a.m. Although Cain was 

allowed to travel any route he chose, because of the drops 

and time constraints, it was necessary that he took the 

shortest route; indeed, Cain testified that he had to drive 

around 65 mph to arrive at Sidney at 6:30 a.m. 

Cain occasionally would receive written orders from the 

Gazette advising him that drop points had been changed, and 

he was requested to honor those changes. The Gazette also 

showed him how to load his truck, putting the bundles for 

Sidney on first, since they would be the last to come off. 

The Gazette also furnished Cain with a telephone credit card 

so he could apprise the Gazette of any problems he might 

encounter with deliveries. 
At times Cain was requested to carry vending machines 

which dispensed Gazette papers to and from Billings for 

repairs. He was also requested to deliver and delivered 

fence posts and the tubes used by the Gazette as rural "paper 

boxes." Cain sometimes was required to carry letters and 

packages to Gazette district offices along his route. These 

extra services were not provided for in the contract, nor did 

Cain receive extra compensation for doing them. Cain was 

also expected to pick up messages with orders or changes from 

a room in the Gazette's Billings offices, when he picked up 

the papers. 

The evidence establishes that Cain rendered service as a 

carrier for the Gazette pursuant to two written contracts. 

While those contracts very adequately state that Cain was an 

ind.ependent contractor and that the Gazette disclaims having 

any control, section 39-71-120(1), MCA, provides that the 

independent contractor must be free from control or direction 

of the performance of his services -- "in fact," as well as 

under his contract. In other words, the mere proof that this 

contract designates the carrier as an independent contractor 

is not controlling; the carrier must be independent in fact. 

The Workers' Compensation Court concluded that "Jerry 

Cain's performance of the contract was not free from control 

or direction from the Gazette either under the contract or in 

fact." We find substantial evidence to support the findings 

of the Workers' Compensation Court, as to the Gazette's 

actual exercise of control over Cain, and on that basis 

affirm the court's conclusion. 

There are two collateral matters here which should be 

noted. Under the carrier contract both Mike Cain and Jerry 

Cain may be required to indemnify the Gazette for liability 

arising out of the contract's performance. If the Cains are 
found to be independent contractors, their potential 

liability to the Gazette is supported by section 

39-71-405(l), MCA. If Jerry Cain is an employee of the 

Gazette, the Cains' potential liability must be established 

by the contract alone. See section 39-71-405(2), MCA. 

Claimant supports a finding of Cain's employee status "for 

humanitarian reasons," - viz., Mike Cain should not be reduced 

to poverty, when his participation in the contract was solely 

for the purpose of helping his son. 

Our decision, like that of the Workers' Compensation 

Court, must turn upon the facts, regardless of the effect 

upon the parties. Here, the trial court found facts 

establishing the Gazette's right to control the details of 

Cain's work. Substantial evidence supports the trial court's 

conclusion. On that basis, and that basis alone, we must 

affirm the trial court's conclusion that Jerry Cain was an 

employee of the Gazette. 

The Gazette urges this Court to find independent 

contractor status as a matter of policy, arguing that our 

finding employee status would have a devastating statewide 

effect upon newspapers, whose carriers would automatically 

become "employees" within the meaning of the Workers' 

Compensation Act. We do not agree. Our decision today 

applies only to the relationship between Jerry Cain and the 

Gazette; we make no sweeping statements concerning newspaper 

carriers in general. Had the Gazette's dealings with Jerry 

Cain been free of the trappings of control noted above, 

independent contractor status would have been found. The 

contract clearly and effectively establishes the intent to 

create an independent contractor relationship between the 

Gazette and its carriers; the facts of the relationship 
simply do not bear out that intent, as required under section 

We affirm the Workers' Compensation Court on all issues, 

and remand this case for a determination of reasonable costs 

and attorney's fees, pursuant to section 39-71-611, MCA. 

We concur: 

Judge, s(Stting in place16f Mr. 

Justice John C. Sheehy 
Honorable Peter Rapkoch , District Judge, dissenting. 

The Workers' Compensation Court "found" the necessary factual 

elements of employment, without any basis in the transcript. 

There being no "findings supported by substantial evidence ," 

(Steffes --- and Sharp, cited by the majority), this Court should 

reverse. 

On the issue of the relationship between the claimant and 

Jerry Cain, before there can be an analysis of the nature of that 

relationship, there must first of all be shown a contractual - -- 

relationship. The unilateral, unfulfilled, frustrated 

"assumption" of the claimant that she would be paid "something ,I1 

or, for that matter, that "she thought they were going to be 

married," are certainly not sufficient to create a contractual 

relationship. Nor are they sufficient to constitute 

"expectations" in the sense that something is realistically promised and likely to be received. As argued by Cain and the 

Gazette, there was no consideration for the claimant's services. 

She received nothing additional and she never thought of anything 

additional. That is my clear perception of the evidence. 

An attorney would not advise a client in advance to go out 

and make a contract on that basis; nor, it is submitted, would he 

advise a client to sue for the breach of such a "contract." 

According to the evidence, at the relevant times there were 

none of the elements of an employment contract, either in fact or 

in the minds of the people involved, until it was seen that these 

elements were necessary for the case. They were then manufactured out of whole cloth by other, fertile, minds. The Workers' 

Compensation Court appears to have injected its own ideas of what 

it would have done in the circumstances of this case, after 

knowing, as we do, what truly tragic thing happened to the 

claimant. The majority seems to acquiesce in that process. I 

cannot. 

I further question the majority's reliance upon Norman 

Grosfield, Montana Workers' Compensation -- Manual, Sec. 2.11, p.4, 
that "The division of Workers' Compensation considers this provision (the "aid and sustenance" exemption of Section 39-71-402(2), - 

- MCA) as applying to individuals who work for only room and 

board." That begs the question. However, I do believe from the 

evidence that the claimant worked for "aid and sustenance" at 

most. There is no evidence that she worked "for financial 

security in her anticipated marriage ." 

The relationship between the Gazette and Jerry Cain was shown 

by the evidence to be one between parties to an independent 

contract. Jerry Cain was not an employee of the Gazette. 

The basic test applied by the majority is that of control. 

As the majority correctly indicates, in applying this test, one 

must be careful to distinguish between the purpose of the 

contract and the right to, or the actual, control of the manner 

or details of performance of that contract. Every contract, 

independent, employment or otherwise, has a purpose. The purpose 

of the instant contract was to get the newspapers to their 

appointed places at the appointed times and in suitable condition. 

All of the factors stated by Mr. Cain and others as points of 

"control" by the Gazette over Mr. Cain are addressed purely to 

the meeting of the requirements, the purpose, of the contract. 

The fact that the distance and time requirements are demanding 

v6 and restrict' does not militate against an independent contract. 

The right to control, which destroys an independent contract and 

indicates one of employment, is the right to determine which of 

two or more fitting ways of achieving the purpose of the contract 

will be followed. Because of the nature of the contract here, 

there was no room for, or any right to, control. 

The future looks bleak for independent contracts. 

I therefore respectfully disagree with the majority in their 

opinion that the claimant was an employee of Jerry Cain and that 

Jerry Cain was an employee of Lee Ersterprises. 

place of Mr. Chief Justice Frank I 

Haswell. 

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concur the foregoing dis sent. YP u