Baker v. Cox

• Citation: 147 S.E. 246
• Court: Supreme Court of Virginia
• Decision Date: 21 March 1929
• Parties: BAKER v. NUSSMAN & COX et al.

147 S.E. 246

BAKER

v.NUSSMAN & COX et al.

Supreme Court of Appeals of Virginia.

March 21, 1929.

[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Employe.]

Appeal from Industrial Commission.

Proceedings under the Workmen's Compensation Act by Ella Baker, claimant, for compensation for the death of Madison Baker, employee, opposed by Nussman & Cox, employers, and the American Mutual Liability Insurance Company, insurance carrier. From an order of the Industrial Commission denying claim to compensation, the claimant appeals. Affirmed.

John N. Sebrell,. of Norfolk, for appellant.

S. S. P. Patteson, Rives & Cunningham, of Richmond, for appellees.

CHICHESTER, J. This is an appeal from an order of the Industrial Commission of Virginia, denying the claim of Ella Baker to compensation for the death of her husband, Madison Baker.

The question involved in the case is a very narrow one, but it is not without difficulty. As we view the issue, the sole question is whether Madison Baker was a subcontractor or whether he was an employee of Nussman & Cox. If the former, the claimant is not entitled to compensation; if the latter, she is. This issue presents a question of law to be determined from the facts.

Nussman & Cox are engaged in the general contracting business in Suffolk. They had made a contract to rebuild a building which had been damaged by fire. As an integral part of this contract, they undertook to take down the wall of the burned building and remove the debris.

Nussman & Cox made a contract with the deceased, Madison Baker, to tear down the wall and remove the debris. He was to be paid a flat sum of $180, was to furnish all the teams and tools, and to employ and pay his own labor. The original hearing was had before Commissioner Kizer on March 17, 1928.

The findings of fact by the trial commissioner to which the full commission added other facts, which appear later, are substantially as follows: "The claim was heard upon petition of Ella Baker, widow of Madison Baker, who lost his life on September 16, 1927, while doing contract work for the defendants, Nussman and Cox.

"The sole question before the Commission is whether Madison Baker was an employee or sub-contractor of the defendants.

"The testimony indicates the widow is 51 years of age and resided with her husband at the time of his death. There were other dependents, four grandchildren, the children of a daughter who lived with her parents. Should it be found that Madison Baker was an employee of Nussman and Cox at the time of the accident, Ella Baker and the 4 grandchildren would be entitled to compensation.

"The employer has taken the position that Madison Baker was an employee and not a sub-contractor; but what constitutes an employee or sub-contractor is a question of law, depending on whether the facts bring a person within the law's designation of either status. The employer's insurance carrier is ultimately responsible for the payment of such compensation as may be awarded and is, therefore, entitled to set up such defense as the employer himself could use."

Madison Baker had five mules and one horse, two wagons and two scrapers, which he used in his work. His wife testified that he did a lot of work, such as building roads, grading roads, and hauling for people. A good portion of his work was done under contract. Several witnesses testified that Baker preferred to do the work under contract, at so much the job, rather than on a per diem basis, since he could use his teams and equipment to better advantage.

It was testified that, at the time of the accident, the decedent was moving for the defendants some debris from a building damaged by fire, and that he was furnishing his mules and wagon, and had his son and another helper, Emmett Bynum, working for him. Baker paid his son and Bynum for their work. The widow claims her husband usually made about $25 to $30 per week for his work; but, at the time he was on this job, he does not seem to have informed her exactly what his income was or whether any part of it was an advancement. She does admit, however, that out of the money paid him it was necessary for him himself to pay his help. While working on this particular job, he delivered sand to persons other than this defendant.

S. L. Nussman, a defendant testified that his firm was replacing a building which was destroyed by fire and so badly damaged that it was necessary to take down the front and rear walls to the second floor joists. The roof had fallen in, and the debris was to be cleared up and the building repaired and put into condition. Baker was engaged at the price of $1S0 to clear up the debris and take the walls down. Baker was to furnish his own help, teams, and wagons, and was not on any hourly or daily basis. This witness testified that Baker hired, kept the time of, and also paid, his own helpers. In fact, Nussman did not know how many helpers Baker had, nor did he interfere with them in any way. The defendants had other men working on this job on an hourly basis, and the only supervision exercised over Baker by the defendants was to the extent that he would work to the advantage of the other men.

The employer testified that, averaging the wage Baker had earned while working for him on previous jobs, he was of the opinion that he earned $27.50 per week. This commission finds that Baker's wages was customarily $27.50 per week, but that for this particular job he was paid a flat contract price of $1S0 for himself, the use of his team and wagon, and his two helpers.

Baker had just worked a week on this contract, and he was advanced $100 at one time, $30 another time, and finally $50, or the full amount of $180. These amounts were placed opposite the name of Madison Baker on the pay roll of defendants, with the brief explanation that they were "on account, " or for "tearing down" or "wrecking building." The record regarding the other employees gives their names, hours of labor performed, rate and amounts paid each.

Nussman further testified that he did not attempt to say what Baker was to do with the money paid the latter for the work; that he employed Baker and his team; and that he directed him what to do, and Baker would have his own men do the work. The only direction given by the defendant was so that Baker should work to the advantage of defendants' employees; but, as to the means employed by Baker or as to the number of helpers he had, that was of no interest to the defendants.

The testimony of other witnesses was duly considered, and shows that they knew that Baker was in the contracting business in Suffolk.

Emmett Bynum testified that he was hired by Baker, who also directed him in the work as well as paid him for his services. Nussman never gave any directions to Bynum, but it appears that Baker exercised such control over him as an employer would have over an employee.

Wise Mitchell also testified that he worked for Baker on this job and that Baker was his employer.

"From the above facts, together with a careful analysis of all the testimony, this Commission makes the finding that Baker was not an employee of Nussman and Cox at the time of the accident of September 16, 1927, which resulted in his death."

"Section 2 (b) of the Workmen's Compensation Act (Acts 1918. c. 400) describes an employee as any person 'in the service of another under any contract of hire * * * written or implied.' What constitutes an employee is a question of law; but, whether the facts bring a person within the law's designation, is usually a question of fact. See Stonega Coke & Coal Co. v. Sutherland, 136 Va. 480, 118 S. E. 133. While the employer may consider Baker an employee 'because he hired him, ' such an assertion is not binding on this Commission. The facts in this case do not show a contract of hire but rather a contract whereby a certain job would be done for a specific sum by a person equipped to do such work according to his own means and method, the other party to the contract being interested solely in the results obtained. The defendants had no control over the number of helpers Baker had, neither did they...