O'Boyle v. Parker-Young Co.

• Citation: 112 A. 385
• Decision Date: 05 February 1921
• Docket Number: No. 268.,268.
• Parties: O'BOYLE et al. v. PARKER-YOUNG CO.
• Court: United States State Supreme Court of Vermont

112 A. 385

O'BOYLE et al.

v. PARKER-YOUNG CO.

No. 268.

Supreme Court of Vermont. Caledonia.

Feb. 5, 1921.

Appeal from Order of Robert W. Simonds, Commissioner of Industries.

Claim for compensation under the Workmen's Compensation Act by Idella Lowell O'Boyle and others, opposed by the Parker-Young Company, employer. From order of the Commissioner of Industries disallowing their claim, complainants appeal. Order affirmed as to the named claimant, as to the others reversed pro forma, and cause remanded to the Commissioner for further proceedings.

Argued before WATSON, C. J., and POWERS, TAYLOE, MILES, and SLACK, JJ.

Amey & Cameron, of Island Pond, for appellants.

Searles & Graves, of St. Johnsbury, for appellee.

SLACK, J. From an order of the Commissioner of Industries disallowing their claim for compensation under the Workmen's Compensation Act (G. L. 5752-5831), the claimants bring this appeal. The only question certified to this court by the Commissioner, is Whether on the facts found by him the claimants, or any of them, are entitled to compensation. The facts are these, in substance: The defendant, a corporation, is extensively engaged in manufacturing sounding boards, house finish, boxes, etc., at factories located, respectively, at Orleans, Vt., and Lisbon, N. H. In October, 1915, it owned a quantity of lumber stacked in piles on the Ed. Chandler farm, so-called, located in this state, a few miles from East Barnet, which it contracted, in writing, with one C. B. Joy to haul to East Barnet and there load onto cars ready for shipment. He was to "draw all of the lumber in the first setting in this 'coming winter and to finish the job by April 1, 1917." He was to order in the cars necessary for shipping the lumber, and bill them out when loaded, load lumber of different kinds and thickness in separate cars as ordered, and keep the "yard picked up in good shape." For this work he was to receive $2 per thousand for the soft lumber, and $2.40 for the hard lumber, to be paid the first of each month for all tallies received at the Lisbon office at that time.

At the time this contract was made, Joy had in his employ, as a farm hand and teamster, a man named Lowell, who was the former husband of the claimant Idella Lowell O'Boyle, and father of the other claimants. Lowell, under orders from Joy, commenced hauling the lumber from the Chandler farm to East Barnet, and while so engaged, on November 2, 1915, a bridge over which he was passing broke down, and he received injuries from which he died February 25 following. The defendant had no control over the way or manner in which Joy or Lowell performed this contract beyond what is above stated. Neither was it the owner or lessee of the land where the injury occurred or the land where the lumber was stacked, at least the commissioner so found. It is found that the injuries from which Lowell died arose out of and in the course of his employment. The contract is silent as to where the lumber was to be shipped from East Barnet, but the lumber which Lowell was hauling at the time he was injured was to be shipped to the defendant's factory at Lisbon.

The defendant insists that the order of the Commissioner dismissing the claimants' application for compensation should be affirmed, because it does not appear: (1) That Lowell was an employee of the defendant; (2) that the defendant was hauling lumber for pecuniary gain; (3) that it was the proprietor or operator of the business carried on at the place of the accident; and (4) that Lowell's employment was not for the purpose of the defendant's trade or business.

While it appears that Lowell was in the employ of Joy, and entirely under his control, at the time of the accident, such facts are not determinative against the claimants' rights. G. L. 5758 provides how certain words and phrases in the statute shall be construed when used in the Workmen's Compensation Act; and subdivision 1 reads as follows:

"'Employer' to include any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and to include the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed."

Subdivision 5 of the same section provides:

"'Employment,' in the case of private employers, to include employment only in a trade or occupation which is carried on by the employer for the sake of pecuniary gain."

It was the evident intention of the Legislature to make the person or persons, company or corporation, that for practical purposes was the proprietor or operator of the business being carried on the employer, as the word is used in the statute, though not actually the employer of the workmen by reason, among others, of there being an independent contractor who was the direct employer. Under the provisions of the statute quoted, the true test is, Did the work being done pertain to the business, trade, or occupation of the defendant, carried on by it for pecuniary gain? If so, the fact...