Aetna Cas. & Sur. Co. v. Petty
| Decision Date | 30 April 1940 |
| Citation | 282 Ky. 716,140 S.W.2d 397 |
| Parties | ÆTNA CASUALTY & SURETY CO. et al. v. PETTY et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Christian County; Ira D. Smith, Judge.
Proceeding under the Workmen's Compensation Act by John Dedrick Petty, alleged employee, opposed by W. D. Cooper and others a partnership doing business as Hancock-Cooper Loose Floor employer, and the Ætna Casualty & Surety Company, insurer. From a judgment of the circuit court, affirming an award of the Workmen's Compensation Board for alleged employee employers and insurer appeal.
Affirmed.
White & Clark, of Hopkinsville, and S.E. Bevins, of Louisville, for appellants.
W. E. Rogers, Jr., and Trimble & Trimble, all of Hopkinsville, for appellees.
This is an appeal from a judgment of the Christian circuit court, affirming an award of the Workmen's Compensation Board.
Upon an application by appellee, John D. Petty, to the Compensation Board for compensation for injuries received while working for appellant, a referee award was made him.
The appellant employer applied for a review by the full board, which was granted, and the referee's findings of fact and award were approved and adopted by it.
Appellant thereupon filed in the circuit court a petition, seeking an appeal and review of the board's findings and award.
The cause coming on for hearing, the court rendered a judgment approving and affirming the board's factual findings and award to claimant, with costs incurred both in that court and before the board.
The employer has appealed, insisting upon a reversal of this judgment upon the grounds: (1) That the appellee was not, at the time of receiving the injuries for which he was awarded compensation, an employee of the partnership, but was working for it is as an independent contractor; and (2) that the trial court's judgment was erroneous in affirming the full amount of compensation awarded by the board, in that same embraced a substantial allowance for injuries not shown by the evidence to have been sustained.
We will now undertake to dispose of these grounds urged for reversal of the judgment in the order presented.
Our decision in regard to the first of these grounds must turn upon our conclusion reached as to what was the relationship status of the appellee and his employer, created under the working arrangement made and existing between them, on August 30, 1937, the day appellee was injured by a spraying machine accident, arising out of and in the course of the work he was engaged in doing for his employer at its plant.
Whether the appellee is entitled to receive the compensation, awarded him for his injuries, found sustained as an employee, under the provisions of the Compensation Act, must depend and turn upon our determination of whether or not he was, at the time injured, working for the appellant company as its employee or as an independent contractor.
The Compensation Board, upon the evidence introduced and the testimony given by both the claimant and Mr. Hancock, the member of the partnership employing him, found that he was, at the time injured, an employee of the appellant company and accordingly awarded him compensation therefor, as coming within the protection of the remedial provisions of the Compensation Act, and the board's findings and award were affirmed on appeal by the circuit court.
It appears that in practically every jurisdiction in which this question has been considered, as to whether or not an independent contractor comes within the protection and purview of the Workmen's Compensation Act, or statutes of such description, the position has been taken that independent contractors are outside their purview.
The fact of the claimant's employment, whether as a servant or as an independent contractor, when it is put in issue on a hearing before the board entrusted with the duty of awarding compensation, must be established by common law evidence sufficient to support a finding by the jury that he was employed on such footing, and the question of primary and determining importance before the board called upon to make the compensation award is whether or not the status of the plaintiff, or claimant, at the time he received his injuries was that of an independent contractor, or that of an employee of the defendant.
This rule is thus stated in 71 C.J., section 181, page 445: "In the absence of a statutory provision to the contrary, an injured person who is not an employee, but an independent contractor for the work, is not within the scope of a compensation act; and when it appears that the parties have contracted for the performance of work under circumstances which the courts have determined constitute the worker an independent contractor, an industrial commission has no further powers and must dismiss the claim." See also 28 R.C.L., section 57, page 762; Diamond Block Coal Co. v. Sparks et al., 209 Ky. 73, 272 S.W. 31; Wright et al. v. Wilkins et al., 222 Ky. 144, 300 S.W. 342.
Such, in harmony with this general rule, is the holding of this court, that an independent contractor is not an employee, as defined in the Workmen's Compensation Act, section 4880, and therefore not insurable against personal injuries to himself by that act, while carrying out his independent contract.
There is no substantial conflict ordispute as to the facts of the contract of employment here made by appellee with Mr. Hancock, the member of the partnership employing him, and therefore the question on the facts is one of law and the finding of the board under such circumstances is one of law which may be reviewed by this court. Diamond Block Coal Co., supra; Bates & Rogers Construction Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Rusch v. Louisville Water Co., 193 Ky. 698, 237 S.W. 389; Raponi v. Consolidation Coal Co., 224 Ky. 167, 5 S.W.2d 1043.
This evidence heard by the board, and by the trial court reviewing it, was found and held sufficient to show that appellee was when injured working for the appellant as an employee, within the meaning of the Compensation Act, and therefore was entitled to receive compensation therefor as by it provided.
There being, as stated supra, no substantial conflict in this evidence in reference to what was the employment or relationship between the parties, under such circumstances the finding of the board was a finding of law, which we are here called upon to review and determine whether its finding was sustained by evidence of probative value.
Black Mountain Coal Corporation v. Strunk, 263 Ky. 234, 92 S.W.2d 66.
The testimony of the claimant, Petty, as to the working arrangement or contract made between him and Mr. Hancock, a member of and representing the appellant partnership when employing him, is, briefly stated, that he, during all the times herein mentioned, lived in Hopkinsville, Ky. where was also located and operated the appellant company's business; that he had for some thirteen years been there employed as a watchman at the plant of the American Snuff Co., where, in such capacity, he usually worked between the hours of three and eleven P. M., leaving him free, between the closing and beginning time of such work, to do such other work as he desired to do.
He stated that on August 26, 1937, Mr. Hancock came to his house and asked ' that he got the tools and started to work on August 26; that before he commenced work, Mr. Hancock said that the company was operating under the Workmen's Compensation Act and suggested that he sign its compensation register, which he did; that he was asked what he charged or wanted for his work and that he told him 50¢ an hour, at which rate Mr. Hancock paid him for the work he did; that again, on August 30, Mr. Hancock came after him and told him that the spraying machine had been again broken and asked him to help him repair it; that he and Mr. Hancock worked on the machine together; that Mr. Hancock said, "I have to go away, I will be back directly;" that he put the machine together, but that it would not pump; and that, as he was taking it apart, to clean it out, not knowing there was any pressure in it, it blew up; that the released air pressure blew lime into his eyes, resulting in the loss of the sight of his right eye, injury to his left eye and the later enucleation or removal of the right eyeball; that the vision of his left eye was so impaired by the injury, that he is compelled to wear glasses in order to have normal vision in that eye; that by the use of glasses, his vision seems to be normal, but that he can't see as well as he did before the accident.
He stated that at the time of the accident he was making 50¢ an hour under the agreement had with Mr. Hancock and was supposed to work 48 hours per week; that for some days following his injury, he was totally blind and disabled and for some two or three months was paid by Mr. Hancock a weekly compensation of $13.50.
He further...
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