Am. Employers' Ins. Co. of Boston v. Grabert.
| Decision Date | 26 March 1935 |
| Docket Number | No. 4048.,4048. |
| Citation | 42 P.2d 1116,39 N.M. 173 |
| Parties | AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS.v.GRABERT. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Luna County; Hay, Judge.
Proceeding under the Workmen's Compensation Act by Claude Grabert, Jr., against the American Employers' Insurance Company of Boston, Mass., insurer. From a judgment for claimant, insurer appeals.
Affirmed, and cause remanded.
Claimant hired by mining company to load ore concentrates on freight cars at certain price per ton with right to hire his own helpers held not “independent contractor” but “employee” and entitled to compensation for injuries, where company reserved right to discharge claimant with or without cause, thereby reserving power to coerce claimant into doing work in manner suitable to company. Comp.St.1929, § 156-101 et seq., as amended.
H. B. Hamilton, of El Paso, Tex., for appellant.
Wilson & Woodbury, of Silver City, for appellee.
The question involved in this case is whether the appellee was an independent contractor or an employee within the provisions of the Workmen's Compensation Act (Comp. St. 1929, § 156-101 et seq., as amended).
The district court concluded that his relation was that of employee, and, from the judgment in favor of appellee based upon that finding and conclusion, an appeal has been taken.
The findings upon which are based the foregoing conclusions are as follows:
“That on or about the 7th day of June, 1933, said employer and said claimant entered into an arrangement or agreement whereby claimant was employed by said mining company to load concentrates from the ore concentrate bins of said employer into railway freight cars for shipment to a smelting company in St. Louis, Missouri; said agreement or understanding being verbal, the terms of said arrangement and the work performed thereunder in essence being:
“(a) Said claimant to be paid nine and one-half cents (9 1/2¢) per ton for each ton of concentrate belonging to said mining company loaded by him from the concentrate bins into the railroad cars.
“(b) Claimant had the right to engage helpers for the purpose of doing said work, the wages of said helpers to be paid by said claimant.
“(c) Said claimant was at all times required to load such concentrates as might be designated by said mining company into cars to be designated by said mining company.
“(d) Said arrangement could be terminated at any time by either claimant or the mining company with or without cause without either incurring liability for so doing.
“(e) Said mining company reserved the right at all times to require said claimant to use such helpers or assistants as were agreeable and satisfactory to the mining company.
“(f) That on or about the 15th day of October, 1922, the arrangement was changed so that the amount received by claimant for loading concentrates was ten and one-half cents (10 1/2¢) per ton instead of nine and one-half cents (9 1/2¢) per ton.
“(g) That claimant was at all times subject to the mining company's orders and instructions regarding the time, method and manner of loading said concentrates and said claimant was at all times subject to call by said mining company to load concentrates.
“(h) That all tools used by claimant in the doing of...
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