NO. 90-195 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JAMES ANDRE MORRIS, Deceased, 

and IRENE MORRIS, 

Claimant and Respondent, 

v. 

MONTANA FORWARD, 

Employer, 

and 

STATE COMPENSATION MUTUAL 

INSURANCE FUND, 

Insurer and Appellant. 

APPEAL FROM: The Workerst Compensation Court, 

The Honorable ~imothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Elizabeth A. Horsman, Esq., State Compensation 

Mutual Insurance Fund, Helena, Montana 

For Respondent: 

Norman H. Grosfield, Esq., Helena, Montana 

Filed: 

Submitted on Briefs: August 23, 1990 

Decided: October 23, 1990 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The State Compensation Mutual Insurance Fund appeals the 

determination of the Workers1 Compensation Court that James Andre 

Morris was an employee of Montana Forward at the time of his death. 

We affirm. 

The issues are: 

1. Did the court err in determining that, at the time of his 

death, James Andre Morris was an employee of Montana Forward 

entitled to benefits under the Montana Workers1 Compensation Act? 

2. Did the court err in admitting the testimony of Milton 

McKee Anderson regarding conversations he had with Morris? 

James Andre Morris was fatally injured in an airplane accident 

near Helena, Montana, on April 8, 1988. At the time of the 

accident, he was piloting for gubernatorial candidate Jim Waltermire, on a campaign trip. ItMontana Forward with Waltermirel' 

(Montana Forward) was the Waltermire campaign organization. 

Morris owned and operated Dillon Flying Service, a charter air 

service in Dillon, Montana. The plane Morris was piloting for 

Waltermire was neither owned nor operated by Dillon Flying Service. 

Another individual had donated the use of the plane to the 

campaign. Morris had twice before flown that plane for the 

campaign, at a rate of $25 per hour or $100 per day plus expenses 

and subject to his availability with regard to his charter service. 
Morris's widow filed a claim for workers1 compensation death 

benefits. The claim was denied by the insurer, State Compensation 

Mutual Insurance Fund (State Fund), on the basis that Morris was 

an independent contractor with Montana Forward. Mrs. Morris 

petitioned the Workers1 Compensation Court to resolve the dispute. 

After analyzing the facts of the case as presented at trial, the 

court concluded that Morris was an employee of Montana Forward at 

the time of his death and that he was entitled to coverage under 

the Workers1 Compensation Laws of Montana. 

Did the court err in determining that, at the time of his 

death, James Andre Morris was an employee of Montana Forward 

entitled to benefits under the Montana Workers1 Compensation Act? 

We recently restated our standard of review of decisions of 

the Workers1 Compensation Court: 

Decisions of the Workers1 Compensation Court 

will not be overturned if there is substantial 

evidence to support its findings and conclusions. Where findings are based on conflicting evidence, the reviewing court's function 

is confined to this determination; it is not 

the court's function to determine whether 

there is sufficient evidence to support contrary findings. 

Gaumer v. Montana Dept. of Highways (Mont. 1990), 795 P.2d 77, 79, 

47 St.Rep. 1202, 1205 (citations omitted). 
Under Montana's statutory scheme, if Morris was not an 

"independent contractorI1' he was entitled to benefits under the 

Montana Workers1 Compensation Act as an employee of Montana 

Forward. See 55 39-71-117, -118, -120, -401, MCA. An "independent 

one who renders service in the course of an 

occupation and: 

(a) 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 

(b) is engaged in an independently established 

trade, occupation, profession or business. 

Section 39-71-120 (I), MCA. It is not disputed that Morris was 

engaged in an independently established trade or business. The 

State Fund argues that he was an independent contractor because he 

was free from Montana Forward's control as well. 

The four factors considered when examining right of control 

are: (1) direct evidence of right or exercise of control; (2) 

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

fire. Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 425, 

584 P.2d 1298, 1301-02, citing Larson, Workmen's Compensation Law, 

Vol. lA, Sec. 44.31, pp. 8-35. When the Workers1 Compensation 

Court analyzed those factors, it concluded that Morris was an 

employee of Montana Forward. 
The court pointed out that the direct evidence of control by 

Montana Forward over Morris was limited to when and where he would 

work. However, it recognized that the specialized skills of a 

pilot preclude anyone who is not a pilot from exercising control 

over details of operating a plane. The court stated g8[s]tanding 

alone, this factor would likely not be sufficiently persuasive 

either in favor of employment or against it." 

Morris was paid $25 per hour or a minimum of $100 per day. 

Payment for time is strongly indicative of an employment relationship rather than an independent contractor relationship. Sharp, 

584 P. 2d at 1302. As Montana Forward points out, the effect of 

this general rule is lessened by the testimony indicating that 

independent air charter services often calculate rates based on 

flight time. 

Montana Forward argues that because it had no investment in 

the plane and was not responsible for repairs on the plane, the 

"furnishing of equipment" factor indicates that Morris was an 

independent contractor. We disagree. The use of the plane was 

given to Montana Forward, not to Morris. Montana Forward paid all 

non-pilot costs for the plane and it could have hired any qualified 

pilot to fly it. Clearly the campaign acquired the plane and 

furnished it to Morris. 

There was no written agreement concerning any right of Montana 

Forward to fire Morris. The testimony, however, indicated that 
Montana Forward would have had the right to obtain another pilot 

and fire Morris at any time, with a probable obligation to pay 

Morris for the time required to get home, were he fired mid-trip. 

The Workers1 Compensation Court concluded that "the latter 

three criteria enumerated by Professor Larson . . . support a 

conclusion that Morris was an employee of Montana Forward on April 

8, 1988 when he died." It pointed out that an independent 

contractor relationship is established tlusually only by a convincing accumulation of these and other tests, while employment can if 

necessary often be solidly proved on the strength of one of the 

four items. Sharp, 584 P.2d at 1302, citing Larson. As further 

noted in the court's findings, Morris did not obtain an exemption 

from workers1 compensation insurance as an independent contractor 

as allowed under 24.29.207, ARM. 

We conclude that substantial evidence supports the findings 

and conclusions of the Workers1 Compensation Court that Morris was 

an employee under the control of Montana Forward. We hold that the 

court did not err in determining that Morris was entitled to 

workers1 compensation benefits. 

I1 

Did the court err in admitting the testimony of Milton McKee 

Anderson regarding conversations he had with Morris? 

Milton McKee Anderson was Morris's friend and his personal and 

business insurance agent. In Anderson's deposition, he testified 
over the State Fund's objection about several conversations he had 

with Morris about the Waltermire campaign and Morris's service to 

the campaign. The State Fund argues that this testimony is 

hearsay, is neither reliable nor probative because Anderson was not 

actually involved with the campaign, and should have been stricken 

from the record. 

The conclusions and judgment of the Workers1 Compensation 

Court make no reference to Anderson's testimony. The only mention 

of that testimony is a reference in the findings of fact to 

Anderson's statement that the pilot makes the decision whether or 

not to fly in adverse weather, a statement also made by another 

witness. The State Fund has not made any showing that the disputed 

testimony affected the judgment and the record does not show 

prejudice from the testimony. We conclude that no prejudicial 

error has been shown. 

Affirmed. 

\i x Chief 
We concur: 

V Qb-1Zlh eHh 

C' Justices 

Justice Fred J. Weber did not participate.