                            NO.    90-551

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991



MURLAND W. SEARIGHT and
VIRGINIA SEARIGHT,
          Petitioners and Appellants,


BONNIE JEAN HOWELL, wage claimant,
and the COMMISSIONER OF LABOR AND
INDUSTRY, State of Montana,                        CLERK OF SUPREME COURT
                                                      STATE OF MONTANA
          Respondents and Respondents.



APPEAL FROM:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Hohorable Thomas Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Murland Searight, Columbia Falls, Montana
          For Respondent:
               Darrell S. Worm; Ogle & Worm; Kalispell, Montana
               Daniel B. McGregor, Department. of Labor & Indust-ry,
               Helena, Montana


                                  Submitted on Briefs:   March 7 ,   1991

                                              ~ecided: April 22, 1991
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

      This appeal arises from a Department of Labor and Industry
decision awarding respondent, Bonnie Jean Howell, $1,110.14 in
wages and the same amount in penalty.          The District Court for the
Eleventh Judicial District, Flathead County, affirmed the Hearing
Officer's decision.    Mr. and Mrs. Searight appeal.         We affirm.
      We restate the issues presented as follows:
      1.    Whether the Department of Labor and Industry possessed
jurisdiction to award wages to Ms. Howell.
      2.    Whether the Hearing Officer applied the proper standard
of proof.
      3.    Whether the District Court erred in concluding that Ms.
Howell's wage claim was not barred by the doctrine of res judicata.
      On October 29, 1986, Bonnie Jean Howell (Ms. Howell) filed a
wage claim against Mr. and Mrs. Searight (Searights) with the
Department of Labor and Industry (Department).          The claim, filed
solely in Ms. Howell's name, also demanded wages for her two sons.
The   Department   split   the   claim   and    considered   that   portion
pertaining to Ms. Howell at a hearing held on June 4, 1987.            The
Hearing Examiner held in favor of Ms. Howell after making the
following findings of fact:
      1.    Ms. Howell was employed by the Searights from April
      8, 1985 through May 17, 1985 (Stipulated Fact. )

      2.   Ms. Howell has received $250.00 from the Searights
      in the form of a personal check for $150.00 and $100.00
      cash (Stipulated Fact.)

      3.   A list of chores was provided by the Searights for
      Ms. Howell to perform at the rate of $5.00 per hour
     (Stipulated Fact.)
     4.   The Searights hired Ms. Howell to house-sit their
     home and to perform certain chores while they were on an
     extended trip to China.
     5.   Prior to employment, a verbal employment agreement
     was made between Virginia Searight and Ms. Howell. Also
     involved and affected by the agreement were Ms. Howell's
     sons, Carl Howell and Robert Howell. Ms. Howell was to
     receive $20.00 per day or $150.00 per month for house-
     sitting. In addition, and as shown above in Stipulated
     Fact, Ms. Howell was to receive $5.00 per hour for work
     performed relative to a list of chores provided by Ms.
     Searight. Robert Howell was to receive $10.00 per day
     for playing with the Searight's dog and Carl Searight was
     to receive $1.00 per day for grooming the dog and
     cleaning up after the dog. (NOTE: The payment or non-
     payment of services performed by Carl Howell and Robert
     Howell is not at issue in this matter; their employment
     agreements are mentioned only to clarify the employment
     agreement of [Ms. Howell].)
     6.   Ms. Howell recorded hours worked relating to the
     additional chores to be performed at the rate of $5.00
     per hour.
     7.   Ms. Howell claims the following:
     House sitting - 5 weeks plus 5 days
     at $150.00 per week
     115 hours worked at $5.00 per hour             575.00
     Less certain items received by Ms. Howell       72.00
     Less $250.00 received by Ms. Howell            250.00
                 Total owed to Ms. Howell         $1,110.14
     The Hearing Officer concluded that the Searights owed Ms.
Howell $2,220.28 in wages and statutory penalty and ordered payment
accordingly.   The Searights petitioned for judicial review from
the Order of the Hearing Officer.   The District Court affirmed the
Hearing Officer's decision. The Searights filed a motion to vacate
judgment which the District Court      subsequently denied.      The
Searights appeal.


        Whether    the    Department       of    Labor   and    Industry      possessed
jurisdiction to award wages to Ms. Howell.
        The issues raised on appeal in t.hiscase are questions of law.
In reviewing questions of law, this Court will merely "determine
if the agency's interpretation of the law is correct, instead of
applying the inappropriate abuse of discretion standard".                            Steer
Inc. v. DOR (1990),        -   P.2d    -    , 47 St.Rep. 2199, 2200.
        The Searights maintain that the Department lacked jurisdiction
in this case because Ms. Howell was n o t                      an    employee but an
independent        contractor.        They       urge    that       under   Foster     v.
Commissioner of Labor and Indus. (1987), 225 Mont. 246, 731 P.2d
1313,    the Hearing Officer could not award back wages                          to an
independent contractor.             The Searights also contend that. Ms.
Howell's labor constituted household or domestic service which is
excluded     from the definition            of    llempl~ymentlT
                                                              under Montana's
unemployment insurance statutes.
        Ms. Howell maintains first that the "independent c~ntractor'~

argument     was    not    raised    during       the    proceedings        before    the
Department, and is thus, beyond the scope of judicial review under
  2-4-702 (1)(b), MCA.           We agree.         Section 2-4-702 (1)(b), MCA,
provides:
    A party who proceeds before an agency undor the terms of
    a particular statue shall not be precluded from
    questioning the validity of that statute on judicial
    review, but such party may not raise any other questiog
    not raised before the asencv u n l e s s i t is shown to the
    satisfa-ction of th.gee=~]r:t t h a t t h e r e - - ~ ~ ~ _ - g oc,ause f - z
                                                                      od
     failure to raise     the    question   before   the   aqencv.
     (Emphasis added).
     The independent contractor issue was addressed by the District
Court as follows:
          Whether a person is an employee or an independent
     contractor is a factual question. If [the Searights] had
     raised the issue of whether Ms. Howell was an independent
     contractor and had presented evidence on that issue, the
     hearing officer would have been required to make specific
     findings on that question which the Court could then
     review. Here, [the Searights] did not raise the issue
     nor did they present any evidence regarding it. More
     importantly, [the Searights] stipulated that Ms. Howell
     was employed by them. The Court concludes, therefore,
     that [the Searights] cannot now raise the issue of
     whether Ms. Howell was an independent contractor.
We conclude that 5 2-4-702(1)(b), MCA, is determinative here.           We
affirm the District Court in holding that the Department possessed
jurisdiction to award wages to Ms. Howell.


     Whether the Hearing Officer applied the proper standard of
proof.
     In his conclusion regarding the sufficiency of the evidence
presented before him, the Hearing Officer stated:
          The Searights did not keep any hourly records as to
     the amount of time spent by Ms. Howell working on the
     chores for which she was to be paid $5.00 per hour. Ms.
     Howell proved by reasonable inference that she worked
     hours for which she was not compensated. The Searights
     did not disprove these hours.     See Garsjo vs. (sic)
     Department of Labor, 562 P.2d 473 (Mont. 1977).
     The Searights contend that the Hearing Officer applied the
incorrect standard of proof and that the preponderance of the
evidence would have been the proper standard to apply.         Ms. Howell
maintains   that while   the    Hearing   Officer   observed    that   the
Searights had not kept hourly time records, Ms. Howell kept records
and submitted a summary of her records in support of her claim.
She contends that Garsjo does not create a different standard of
proof, but rather, endorses the use of circumstantial evidence to
establish a    reasonable approximation of the hours worked       in
constituting substantial evidence to support a claim.   See Holbeck
v. Stevi-West, Inc. (1989), 240 Mont. 121, 125-126, 783 P.2d 391,
394-395.
     Here, Ms. Howell presented exhibits which detailed the work
done.   She kept track of exactly what she did each day and how much
time was spent on it.    As the Department argues, this evidence,
coupled with Ms. Howell's testimony and the stipulated fact that
she was employed from April 8, 1985 through May 17, 1985, clearly
constituted substantial evidence to support the Hearing Officer's
conclusion.    See Garsjo and Holbeck.    We hold that the Hearing
Officer applied the correct standard of proof.
                                 I11

     Whether the District Court erred      in concluding that Ms.
Howell's wage claim was not barred by the doctrine of res judicata.
     The Searights contend that the findings and conclusions of the
separate proceedings involving Ms. Howell's sons are contrary to
the findings and conclusions in this case, and thus, the doctrine
of res judicata requires accepting those findings and conclusions
over those entered here.     They argue that the findings of fact
established that the employments of Ms. Howell, Carl and Robert
were for the identical time period, at the identical location,
under one agreement, by the identical family members.
     The doctrine of res judicata applies when (1) the parties or
their privies are the same; (2) the subject matter of the action
is the same; (3) the issues related to the subject matter are the
same; and    (4) the capacities of the person are the same in
reference to the subject matter and the issues between them. Phil-
CO Feeds v. 1st Nat'l Bank in Havre (1989), 238 Mont. 414, 777 P.2d
1306.
        The parties are not the same in the two cases. They are only
of the same family. Here, Ms. Howell is the wage claimant. In the
previous case, Ms. Howell's sons, Carl and Robert, were the
claimants. In the case at bar, the issue is whether Ms. Howell is
owed unpaid wages for work performed pursuant to express orders.
In the sonst case, the issue was whether they were owed wages at
all for caring for the Searightst dog.    We hold that the District
Court was correct in ruling that the doctrine of res judicata did
not bar Ms. Howellts claim.
     Affirmed.




         Chief Justice
