Aetna Casualty & Surety Co. v. Petty

• Citation: 282 Ky. 716
• Parties: Aetna Casualty & Surety Co. et al. v. Petty et al.
• Decision Date: 30 April 1940
• Court: United States State Supreme Court (Kentucky)

282 Ky. 716

Aetna Casualty & Surety Co. et al. v. Petty et al.

Court of Appeals of Kentucky.

April 30, 1940.

1. Workmen's Compensation. — The fact of claimant's employment, whether as servant or as independent contractor, when put in issue before Compensation Board, must be established by common law evidence sufficient to support jury's finding that claimant was employed on such footing, and question of primary importance before board is whether status of claimant was that of independent contractor or that of employee of defendant (Ky. Stats., sec. 4880).

2. Workmen's Compensation. — In absence of statutory provision to contrary, injured person who is not an employee, but independent contractor, is not within scope of Compensation Act, and when it appears that parties have contracted for performance of work under circumstances which courts have determined constitutes worker an independent contractor, Industrial Commission has no further power and must dismiss the claim (Ky. Stats., sec. 4880).

3. Workmen's Compensation. — An independent contractor is not an "employee" within Workmen's Compensation Act, and therefore is not insurable against injuries to himself by such act, while carrying out his independent contract (Ky. Stats., sec. 4880).

4. Workmen's Compensation. — Where there was no substantial conflict or dispute as to facts of employment contract, whether claimant was employee or independent contractor was law question and Workmen's Compensation Board's finding was one of law which could be reviewed by Court of Appeals (Ky. Stats., 4880, 4935).

5. Workmen's Compensation. — The "employer and independent contractor relationship" exists where one contracts with another to do specific piece of work (Ky. Stats., sec. 4880).

6. Workmen's Compensation. — Evidence sustained Workmen's Compensation Board's finding that night watchman at snuff plant who was employed by partnership to help fix spraying machine was "employee" of partnership, and not "independent contractor," in view of testimony of partner that power to control over watchman and manner of doing work was reserved by partner and that watchman was not free to come and go as he pleased (Ky. Stats., sec. 4880).

7. Workmen's Compensation. — Where it was not contended that anyone engaged in administration of Workmen's Compensation Act was guilty of fraud or misconduct, the board's findings of fact could not be reviewed or set aside, there being evidence to support them (Ky. Stats., sec. 4935).

8. Workmen's Compensation. — Evidence sustained Workmen's Compensation Board's fact finding that employee who suffered loss of one eye and permanent partial impairment of vision of other eye had suffered such disfigurement as would impair his future usefulness and occupational opportunities, for which board made additional compensation allowance authorized by act, and therefore Court of Appeals was not authorized to disturb finding (Ky. Stats., secs. 4899, 4935).

Appeal from Christian Circuit Court.

White & Clark and S.E. Bevins for appellants.

W.E. Rogers, Jr., and Trimble & Trimble for appellees.

Before Ira D. Smith, Judge.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

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 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 or dispute 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 "would I help him. I told him yes. He said, `You had better get some tools, I have a whitewashing machine that needs fixing. I want to whitewash a building, and you might have to go into it;'" that he got the tools and started to...