Le Blanc v. Nye Motor Co.

• Decision Date: 01 October 1929
• Citation: 147 A. 265,102 Vt. 194
• Parties: WILFRED LE BLANC v. NYE MOTOR COMPANY ET AL
• Court: Vermont Supreme Court

147 A. 265

102 Vt. 194

WILFRED LE BLANC v. NYE MOTOR COMPANY ET AL

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Master and Servant---Workmen's Compensation Act---Independent Contractor---Sufficiency of Evidence To Make Prima Facie Case That Claimant Was Employee---Test for Determination Whether Employment is "Purely Casual"---Meaning of Term "Casual"---Insufficiency of Evidence To Establish Prima Facie Case of Ordinary Service---Burden of Proof---Uncertainty and Irregularity of Claimant's Services as Characterizing Nature of Jurisdiction.

1. In proceeding under Workmen's Compensation Act, if claimant for compensation was not employee, but independent contractor, or if his employment was purely casual, commissioner of industries was without jurisdiction and any order made by him was void.

2. In such proceedings, findings that claimant, who was stonecutter, worked at his trade during usual working hours and worked for motor company, under parol contract to sell both new and used automobles on commission, "after hours," Sundays, and holidays, motor company to furnish cars to be sold and gas and oil necessary for their demonstration, and claimant being permitted to show cars to whoever he could interest and to demonstrate them when he chose, but being required to submit all proposed transactions to motor company for approval, held, to make prima facie case that claimant was employee of motor company.

3. Test in determining whether one who is performing work for another is servant or independent contractor is right of one for whom work is done to control work and direct means and methods by which it shall be done.

4. Whether employment is "purely casual" within meaning of Workmen's Compensation Act is to be determined by contract for service.

5. Word "casual" means something that comes without regularity, and is occasional and incidental.

6. In proceedings under Workmen's Compensation Act, where findings showed that claimant, who sold automobiles for a motor company on commission, was not required to work for that company at any certain or regular time, but only did what he could after hours of his regular employment as stonecutter and on Sundays and holidays, demonstrating cars at his own, and customer's convenience, held that findings did not make prima facie case of ordinary service but merely an opportunity to devote such of his spare time as he saw fit to sale of cars, with no obligation to use any of it therefor; and that his employment not being regular periodic, or certain, burden was on claimant to show that such employment was not purely casual.

7. Uncertainty and irregularity of claimant's service under contract to work for motor company in sale of cars on commission, after hours, Sundays, and on holidays, characterizes nature of his employment, and not fact that what he might do would be done outside hours he worked at his trade.

8. Where claimant's employment was purely casual, commissioner of industries was without jurisdiction to make rulings that accident arose in course of employment, and that it did not arise out of employment.

APPEAL from decision and order of commissioner of industries, Washington County. From holding that claimant was an employee of Nye Motor Company at time of injury, and that his employment was not purely casual, defendants appealed. The opinion states the case. Order vacated, and proceedings dismissed.

Order vacated and proceedings dismissed with costs. Let the result be certified to the commissioner of industries.

Deane C. Davis for the claimant.

An injury arises out of the employment when it occurs in the course of it and as a proximate result of it. Brown et al v. Bristol Last Block Co., et al., 94 Vt. 123, 125.

When an injury is a natural and necessary incident or consequence of the employment, though not forseen and expected, it arises out of it. An injury is incidental to the employment when it belongs to or is connected with what the workman has to do to fulfill his contract of service. Brown et al. v. Bristol Last Block Co. et al., supra; Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303; Bryant v. Fissell, 84 N. J. Law, 72, 86 A. 458.

The claimant at time of injury was performing a duty which he owed defendant in operating the automobile, was at that time in the service of his employer, and employment entailed exposure to injury, hence his injury arose out of his employment. In re McNicol, 215 Mass. 497, 102 N.E. 697; Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320; Katz v. A. Kadans & Co. et al., 232 N.Y. 420, 134 N.E. 330; Moran's Case, 234 Mass. 566, 125 N.E. 591.

The injury "followed as a natural incident" of claimant's operation of the automobile along the highway while showing same to prospective purchasers; and the exposure occasioned by the nature of the employment was to accidents and collisions with other automobiles; such causative danger being peculiar to, and incidental to, the character of the work; and the general doctrine relating to street accidents recognizes an exception in case of workmen whose employment requires them to be frequently on the street. Kneeland v. Parker, 100 Vt. 92; In re McNicol, supra; 28 R. C. L. 805, 93; Zabriskie v. Erie R. R. Co., 86 N. J. Law, 266, 92 A. 385, L. R. A. 1916A, 315; Beaudry v. Watkins, 191 Mich. 445, 158 N.W. 16; Krause v. Swartwood, 218 N.W. 555.

The defendant motor company having required claimant to submit all proposed transactions to defendant for its approval as to allowances for old cars taken in trade, credit of prospect, and to pass on security offered in time payment transaction, retention of such control was entirely inconsistent with theory of independence allowed an independent contractor, and claimant occupied status of employee of defendant, rather than that of an independent contractor. Risenburg v. Western Mercantile Co., 2 Cal. I. A. C. Dec. 673; Travis v. Hobbs, Wall & Co., 2 Cal. I. A. C. Dec. 506; Kelley v. Hoosac Lumber Co., 95 Vt. 50.

The work which claimant was required to perform and did perform for more than one year was regular, systematic, periodic, and certain, hence his employment should not be considered as merely casual. In re Gaynor, 217 Mass. 86, 104 N.E. 339; Eutaw Copper Co. v. Industrial Commission, 193 P. 24; In re Holman Creamery Assn. v. Industrial Commission, 167 Wis. 470, 167 N.W. 808; Armstrong v. Industrial Accident Commission, 36 Cal.App. 1, 171 P. 321; American Steel Foundries v. Industrial Building, 284 Ill. 99, 119 N.E. 902; King's Case, 220 Mass. 290, 107 N.E. 959. Erwin M. Harvey for the defendants.

The agency which produced claimant's injury was another car which had no connection with claimant's duties, and their being no causal connection between conditions under which work was required to be performed and resulting injury, such injury did not arise out of the employment. Brown v. Bristol Last Block Co. et al., 94 Vt. 123; Kneeland v. Parker, 100 Vt. 92, 135 A. 8; In re McNicol, 215 Mass. 497.

The motor company had no control over the claimant's movements, methods, hours, or time and places of demonstrating automobiles, but simply could accept or reject the offer of credit for the old car taken in trade, and determine the degree of financial responsibility of the customer offered if he desired credit, and compensation was not fixed by time spent, or labor performed, but only by results obtained. The relations thus established were not those of employer and employee, but claimant was an independent contractor. Richards v. Consolidated Lighting Co., 90 Vt. 552; Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50; Morgan v. Gould, 96 Vt. 275.

If claimant was not an independent contractor, then his employment was casual, he not being engaged in any regular line of employment, and his employment being intermittent, and not regular. 28 R. C. L. 62.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

SLACK

The commissioner, on facts found and stated by him, held that claimant was an employee of the defendant Motor Company at the time of the accident, that his employment was not purely casual, and that the accident arose in the course of such employment, from which holdings the defendants appealed.

The commissioner further held, on the facts so found and stated by him, that such accident did not arise out of such employment, and denied compensation, from which the claimant appealed.

If claimant was not an employee of the Motor Company, but an independent contractor as claimed by defendants, or if his employment was purely casual, the commissioner was without jurisdiction, and any order made by him was void. Packett v. Moretown Creamery Co., 91 Vt 97, 99 A. 638, L.R.A. 1918F, 173; Chamberlain v. Central Vermont Ry. Co., 100 Vt. 284, 137 A. 326. So we first consider these questions.

The material findings are these: The claimant began work for the Motor Company in ...