No. 13194 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

FATAL: WILLIAM C. KIMBALL, VIVIENNE F. 

KIMBALL, Widow, 

Claimant and Appellant, 

CONTINENTAL OIL COMPANY, Employer, 

HARTFORD ACCIDENT AND INDEMNITY COMPANY, 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record : 

For Appellant: 

Morrison, Ettien and Barron, Havre, Montana 

Robert D. Morrison argued, Havre, Montana 

Burns, Solem and MacKenzie, Chinook, Montana 

For Respondents: 

Alexander, Kuenning, Miller and Ugrin, Great Falls, 

Montana 

Edward C. Alexander argued, Great Falls, Montana 

Submitted: April 19, 1976 

Decided : JUM -4 lq~ 

SLIP! - d, 1976 

Filed : 
Mr. Justice John Conway Harrison delivered the Opinion 

of the Court. 

This is an appeal from an order of the district court, 

Blaine County, affirming the decision of the Workmen's Compensation Division of the Department of Labor and Industry of the 

state of Montana, awarding compensation. 

This case began with an Industrial Accident Board AccidentInjury Investigation report filed with the Board on June 19, 1973. 

A copy of the report filed with the Board was sent to Continental 

Oil Company, whose consignee Richard Brainard had its bulk plant 

in Chinook, Montana, where the accident occurred. Thereafter, 

on July 30, 1973, Continental Oil Company filed with the Workmen's 

Compensation Division its Form 37, "Employer's First Report of 

Occupational Injury or is ease". Thereafter there was correspondence 

between the claim manager of Hartford Accident & Indemnity Company 

(Continental's insurer) and the Workmen's Compensation Division 

as to whether or not Brainard was an independent contractor or an 

employee of Continental Oil Company by reason of his contract. 

In the meantime the law firm of Alexander, Kuenning, Miller 

& Ugrin of Great Falls, Montana, was asked by Hartford for an 

opinion on the legal problems raised by the accident. On June 

12, 1973, Mr. Alexander wrote to Richard C. Sherman, claim 

manager for Hartford, giving the opinion that there was probable 

coverage under the workmen's Compensation Act. 

On October 31, 1973, Vivienne Kimball, widow of William 

H. Kimball victim of the reported accident, employed counsel to 

represent her before the Industrial Accident Board. Counsel 

petitioned the Board for a determination of claim for compensation 

by beneficiaries. Thereafter, the matter was heard on August 21, 

1974. Following the decision of the hearing examiner and affirmance of that decision by the administrator of the Workmen's Compensation Division, the matter was appealed by Vivienne Kimball 
to the district court which on September 3, 1975, affirmed 

the decision of the Workmen's Compensation Division. We note 

here that the beneficiaries received the maximum benefits that 

could be given under the workmen's Compensation Act. 

Here, the fact situation is an unusual one and the status 

of the deceased was difficult to ascertain. The legal procedures followed by the widow were of her own choice, not this 

court's. The dissenting opinion herein takes the position that 

the majority would prevent a deserving widow from obtaining a 

just recovery from an oil company which failed to operate within 

the laws of this state by denying that Kimball was an employee 

and thus entitled to social security benefits, minimum wage, 

unemployment compensation benefits or workmen's cornpetmation. 

This does not appear in the record before this Court, nor is 

there any finding of responsibility on the parties based on the 

facts of the accident on liability. 

The record reveals : 

1. Claimant on May 2, 1974, petitioned the Industrial 

Accident Board for determination of claim for compensation by 

beneficiaries. 

2. The matter was heard and determined, with counsel 

of claimant's choice representing her, before a hearing examiner 

and a district judge. 

Procedurally, whether or not this was the way to settle 

whether or not her husband was or was not an employee of the 

oil company, we will not comment upon other than to note that as 

a result she was awarded 598.20 weeks of compensation benefits 

and medical costs incurred to the time of her husband's death. 

Her later position before the district court and this Court, 

that her husband was not an employee of either Brainard or the 

Continental Oil Company could only be decided in the final 

instance by the controlling statutory and case law of Montana. 
On May 11, 1973, William G. Kimball was severely burned 

while loading a gas truck on premises owned by the Continental 

Oil Company located in Chinook, Montana and died ten days later 

as a result of the injuries. At the time of the accident Kimball 

was performing services for Richard Brainard, a friend, who was 

the bulk plant operator for Continental. Brainard was away on 

active duty in the Army Reserve and had asked Kimball to make 

deliveries of gas during his absence. 

Prior to leaving,Kimball had accompanied Brainard on 

several delivery trips for the purpose of familiarizing himself 

with the equipment and the various customers. Kimball did not 

appear on ~rainard's books as an employee, no withholding or 

social security was paid for him, nor any workmen's compensation payments made to protect him. His relationship was characterized as one of friendship, rather than that of employer-employee. 

However, following ~imball's death, Brainard paid the widow 

$307.00, an amount based on a penny a gallon for the gasoline 

delivered by Kimball during ~rainard's absence. 

The Workmen's Compensation Division, following investigation of the accident, held a hearing and found that under the 

facts Kimball was an employee of Continental Oil Company. On 

appeal to the district court, the decision was affirmed. 

The sole issue before this Court is whether William C. 

Kimball was an employee of the Continental Oil Company bulk plant 

operator, Richard Brainard, at the time of the accident. 

Appellant Vivienne F. Kimball, widow of William C. Kimball, 

argues the services performed by her, husband were strictly 

11 gratuitous" and therefore there could not have been the necessary 

employer-employee relationship within the meaning of section 92-411, 

R.C.M. 1947. She urges that applying the control test set forth 

in State ex rel. Ferguson v. District Court, 164 Mont. 84, 519 

P.2d 151, the necessary elements to determine the employee rela- 
tionship are lacking, for here there is no specific contract of 

employment, no specific order on what he should do, and no 

withholding or specific salary. 

Respondents argue the application of the "control test" 

is not appropriate here as that test is for determining whether 

one rendering service is an employee or an independent contractor. 

Here, no one contended that Kimball was an independent contractor, 

for that position would be inconsistent with the claim that his 

services peformed were gratuitous. Respondents argue the correct 

rule to be followed is that when compensation is paid, it is 

presumed an employer-employee relationship exists. From the 

evidence it is clear that Kimball expected compensation for his 

work and in fact received one cent per gallon he delivered. 

The hearing examiner found : 

"3. That the deceased claimant was employed by 

Richard Brainard, the bulk plant operator, to handle 

his duties while he was away on military duty, for 

a period of seventeen days from about April 25, 1973 

through May 11, 1973, the day of his injury, a period 

of 2.42 weeks, during which he earned an amount of 

$307.-- which was paid to his widow on May 30, 1973, 

an amount that would average $126.86 per week. 

"7. That pursuant to the provisions of Finding of Fact 

No. 5, supra, and pursuant to the provisions of $92-604, 

R.C.M. 1947, the deceased claimant was covered by the 

workmen's compensation insurance carried by the Continental 

Oil Company.'' 

The district court heard the appeal from the Division's 

decision, and upon examination of the record found there was 

substantial evidence to support the findings of the examiner. 

Having so found, it was incumbent on the district court to sustain 

those findings and the resulting conclusions. Section 92-834, 

R.C.M. 1947; DeLeary v. Anaconda Aluminum Co., Mon t . 9 

541 P.2d 788, 32 St.Rep. 1041; Hurlbut v. Vollstedt Kerr Company, 

Mon t . , 538 P.2d 344, 32 St.Rep. 752. 

In cases arising under the Workmen's Compensation Act 

this Court must sustain the Division action if the evidence is 

sufficient to support the findings, even though some evidentiary 
conflict may exist. Lewis v. Anaconda Company, Mont . P 

543 P.2d 1339, 32 St.Rep. 1227. The applicable rule has remained 

unchanged since its adoption in Cartwright v. Industrial Acc.Bd., 

115 Mont. 596, 599, 147 P.2d 909: 

It Our function in this case is to determine whether 

or not there is substantial evidence to support 

the judgment of the district court. JC' * *" 

The judgment of the district court is affirmed. 

We Concur: 
Hun. Arnold Olsen, District Judge, sitting in place of Chief 

Justice James T. Harrison, dissenting: 

The facts as related in the majority opinion are agreed 

to. 

However, this Judge dissents. 

Under the common law, "there are four elements which 

are considered upon the question whether the relationship of 

master and servant exists--namely, the selection and engagement 

of the servant, the payment of wages, the power of dismissal, 

and the power of control of the servant's conduct--the really 

essential element of the relationship is the right of control, 

that is, the right of one person, the master to order and control 

another, the servant, in the performance of work by the latter, 

and the right to direct the manner in which the work shall be 

done. " 53 Am Jur 2d, Master and Servant, $2, p. 82. 

The majority opinion, parenthetically, without expressly 

wording so, upholds a workmen's Compensation rule favoring 

claimants to qualify a contending claimant-employee who can 

establish "compensation in whatsoever kind" is an employee. 

Appellant here brings to question whether or not Continental Oil Company can escape the greater liability of common 

law by insisting that Kimball was an employee at the time of 

his fatal accident and thus Appellant denies Kimball was an 

employer. 

The Continental Oil Company has gone to great lengths 

denying an employee-employer relationship with the operation 

of the premises herein. This is a specific case of example. 

of the Continental Oil Company practice of denying that the 

bulk plant operator, Brainard, is an employee and denying that 

anybody on ~rainard's staff is an employee. Both Brainard and 

the Continental Oil Company deny that Kimball was an employee 

to be entitled to Social Security Benefits, deny that Kimball 
is entitled to protection under the laws relating to a Minimum 

Wage, deny that Kimball was an employee entitled to Unemployment 

Compensation Insurance, deny that Kimball was an employee entitled 

to workmen's Compensation Insurance coverage, or even entitlement to safety inspection protection by the workmen's Compensation Division of Montana, indeed these defendants, now calling 

themselves employers, have denied to the general public that 

Kimball was their agent. So for all their purposes, to the 

world, Kimball was not an employee. 

But, now, when there poses a possible greater liability 

under the common law, that ~imball's widow might be entitled to 

a greater liability, against Continental Oil Company, that 

company wants the benefit of the clothing of an employer for the 

purpose of denying the widow of the deceased Kimball an entitlement to come to the courts of Montana claiming at common law for 

the destruction of the life of Kimball. 

Continental Oil Company should not be heard to say any 

such defense having held itself out as not an employer to all 

the world. Continental Oil Company should not be heard by a 

court of this state to escape the greater liability now that 

they have evaded all liabilities of an employer heretofore. 

The widow Kimball should be entitled to bring action 

against Continental Oil Company without classifying her deceased 

husband as an employee and her election to do so should-not 

exclude her from any other remedy. The Court should say, elcome, widow Kimball, you may seek all remedies and waive none 

of them. I I 

In Montana by Section 92-201, R.C.M.1947, in an action to 

recover damages sustained by an employee in the course of his 

employment, or for death from personal injuries so sustained, 

the common law defenses of employer are repealed. By Section 

92-211, R.C.M. 1947, "No compensation shall be paid to any 

employee, whether such employee has elected to come under this 
act or not, where his employer has failed to elect, and has 

failed to come under one or the other of the compensation plans 

herein .provided. I I 

Under the workmen's Compensation Law of Montana, this 

Continental Oil Company, has elected not to be covered by the 

workmen's Compensation Act and can pay the employee no compensation under the workmen's Compensation Act nor can the defendants 

insure under the Act. 

The Continental Oil Company, whether an employer or not, 

is answerable to the widow of Kimball and now the oil company 

(having admitted its employment) has been stripped of its common 

law defenses. Regardless of Kimball status, whether he be an 

invitee to the premises, a volunteer, a gratuitous servant, 

indeed if Kimball was an employee, liability attaches--but if an 

employee, the liability is without common law defenses, and the 

liability is not limited under the Workmen's Compensation Act. 

There is a wide discussion of "Action Against Employer" in 

5 67.10, 2A arson's Workmen's Compensation Law, and s specific ally, 

I' As a sort of club to drive employers into election of coverage, 

the typical act makes the noncovered employer subject to commonlaw liability without benefit of the defenses of fellow servant, 

assumption of risk and contributory negligence." Further, in 

that same section, "Experience has shown that, although the 

great bulk of employers do elect to come with the acts, there 

is a strong temptation, particularly in times of depression when 

employers are desperately looking for ways in which to cut costs 

of production, to gamble on the possibility that the costs of 

common-law suits, even without the defenses, will be less than 

compensation premiums, especially when there are insurance companies who claim to be able to insure the potential common-law 

risk at a guaranteed saving below compensation insurance costs. 

This kind of 'stop loss' insurance, however, has serious pitfalls 
both for employer and employee which destroy its surface attractiveness from the hard-pressed employers point of view." 

Section 67.21 of arson's, "A common exception to the exclusiveness of the compensation remedy is the right of suit against an 

employer who fails to secure his compensation liability by taking 

out insurance or qualifying as a self-insured." 

Indeed, one wonders, has the Continental Oil Company given 

its employees the protection of safety inspection by the Safety 

Division of the workmen's Compensation Division. One wonders, 

has the state of Montana functioned in its lawful directed duties 

to conduct safety inspections of the plants of the Continental Oil 

Company. Because Brainard and the Continental Oil Company were 

not enrolled with the workmen's Compensation Division, undoubtedly 

the Safety Division of the Workmen's Compensation Division did not 

protect the employees. 

A large question in this case is whether the Supreme Court of 

Montana is going to tell the employers of this state and the world, 

"YOU don't have to abide by the Workmen's Compensation Act of Montana, we will cover you even if you don't elect to protect your employees under the workmen's Compensation Act and the incidental 

safety inspection laws of Montana, we will protect you with the 

limited liability of the Workmen's Compensation Act regardless 

of the fact that you haven't been a good employer and a law-abiding 

employer. tt 

I I I say, No, the Continental Oil Company has been an irresponsible employer and should suffer the penalty of the Workmen's 

Compensation Act, namely, the Continental Oil Company is denied the 

common law defenses by their failure to elect to insure their 

employees under the workmen's Compensation Act." 

This Court must announce to the world that employers in 

this state must abide the workmen's Compensation Act or they shall 

be stripped of the common law defenses. 

The widow Kimball should be heard to come into the courts of 

Montana I 1 and say, Here I am, a widow. The life of my husband was 

taken by reason of the negligence of Brainard and the Continental 

Oil Company. My husband is dead. 1'm entitled 
to compensation at common law." Further, this Court, should 

announce that the only defense of the Continental Oil Company 

would have been that Kimball was a trespasser; but that the 

Continental Oil Company lost that defense, too, because of its 

admission against interest in contending in the action here 

that they are an employer even though irresponsible. 

The widow Kimball should not lose the success of the 

claim with Workmen's Compensation limited recovery. She has not 

elected that remedy and she does not have to choose at her 

peril of losing a common law remedy. I see the widow Kimball 

coming into the District Court and saying, "I am a widow. My 

name is Kimball. My husband went to work at the Continental Oil 

Plant for Brainard and was injured there and died as a result of 

his injuries. The Continental Oil Company and Brainard did not 

protect my husband by safety inspections nor by insurance under 

the workmen's Compensation Act nor by any other act did Brainard 

and the Continental Oil Company designate my husband an employee. 

I, the widow, am entitled to damages for my losses. 11 

Thereupon the district court snnauncee that Brainard 

and the Continental Oil Company do not have any of the common law 

defenses and we will hear what the damages of the widow Kimball 

are. 

The cause should be reversed and remanded to the district 

court to determine the damages of the Appellant, without the 

limitations of the workmen's 

T. Harrison.