                             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


                              Submitted on Briefs:      August 23, 1 9 9 0
                                             Decided:   October 23, 1990
Filed:



                                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 Walter-
mire, 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 conclu-
            sions. Where findings are based on conflict-
            ing 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 con-
            trary 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 5 5 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 relation-
ship 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 convinc-
ing 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.




                                                              x
                             \i          Chief
We concur:




                        V
Qb-1Zlh e H hJustices
  C'
Justice Fred J. Weber did not participate.
