Brewer v. Millich

• Decision Date: 04 March 1955
• Citation: 276 S.W.2d 12
• Parties: A. E. BREWER et al. (Kentucky Workmen's Compensation Board), Appellants, v. Pete MILLICH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 12

276 S.W.2d 12

A. E. BREWER et al. (Kentucky Workmen's Compensation Board) Appellants, v. Pete MILLICH, Appellee.

Court of Appeals of Kentucky.

March 4, 1955.

Craft & Stanfill, Hazard, for appellants.

Cordell H. Martin, Hindman, for appellee.

MONTGOMERY, Justice.

Pete Millich had been cutting and logging timber since 1906. At the time of the injury suffered, he was sixty-six years of age, had very little education, and from the language used in his depositions and from his name, he appears to have been of foreign extraction. On October 6, 1951, he sustained an injury while working in the timber which resulted in a hernia. Since the question involved here addresses itself to facts other than the circumstances surrounding the injury, no further statement of those circumstances will be made.

Millich had entered into a contract with A. E. Brewer, a manufacturer of staves, on July 30, 1951, to cut, roll, bark, and split into 38-inch stave bolts 148 white oak trees owned by Brewer on certain lands located in Knott County, for which he was to be paid at the rate of $35 a cord. The question involved is whether Millich was an independent contractor such as would preclude him from receiving benefits under the Workmen's Compensation Act, or whether he was in fact an employee of A. E. Brewer. The contract is as follows:

'This agreement made and entered into this 30th day of July 1951 by and between A. E. Brewer of Hazard, Kentucky, party of the first part and Pete Mellish of Topmost, Kentucky, party of the second part, Witnesseth:

'Party of the first part is the owner of 148 white oak trees 20 inches and up in diameter located on the lands of Jeffie Hall in Knott County Kentucky, which he desires to have made into bourbon stave bolts and delivered to his mill at Dwarf, Kentucky.

'Second party agrees to cut, skid, roll, bark and split into 30 inch stave bolts and deliver to first party's mill at Dwarf, Kentucky beginning August 1st. 1951 and continuing until 125 cords of bolts have been made and delivered to first party's mill. All bolts to be delivered before Dec. 31, 1951. All bolts are to be graded at Dwarf Mill and any culls thrown out and not paid for. All bolts are to be branded in the woods by second party before hauling.

'Should it develope that these 148 trees turn out more than 125 cords of bolts, then it is mutually agreed that adjustment will be made Dec 31 1951 or before on the price on the number of cords in excess of 125 cords.

'Second party as an independent contractor is to hire his own men, make his own pay roll, and from same make and report deductions of social security, withholding tax, and Kentucky Unemployment tax, and pay same to proper authorities.

'Second party is to report to first party the gross amount of each employee's pay at the end of each month and first party agrees to carry Liability Insurance on said employees, charging premium for same to second party and deducting same from price of bolts delivered.

'Second party is to use care in cutting, manufacturing and delivering said bourbon stave bolts, and should he fail to do so, as instructed by first party, then first party has the right to cancel and take over this contract and have timber properly manufactured and delivered.

'First party agrees to pay second party on Monday the sum of Thirty Five Dollars ($35.00) per cord of 4 X 8 feet X 38 inches for all bourbon stave bolts delivered and accepted at the mill the week before.

'This contract to be completed by December 31, 1951.

's/ A. E. Brewer

First Party

s/ Pete Millich

Second Party

's/ Foster Caufill'

Witness

The Workmen's Compensation Board, on review, denied compensation and held Millich to be an independent contractor, but the Knott Circuit Court allowed him compensation as an employee, from which judgment this appeal is prosecuted.

The contract executed between these parties was prepared by Brewer in the presence of Millich. On the same date that the contract was prepared and signed, Brewer presented to Millich a Workmen's Compensation Register which, apparently, had already been prepared in the name of 'Pete Millich, Contractor for A. E. Brewer, Hazard, Kentucky.' Millich testified that he signed this register in the column therein designated 'Name of Employee' and entered his social security number thereon on the same day that the contract was signed.

The testimony shows that Brewer arranged for the workmen's compensation insurance and paid the monthly premiums thereon with deductions from the pay due Millich. Brewer was called as if upon cross-examination and testified that the monthly premiums were paid by him, based upon the estimated amount of wages paid by Millich, because Millich failed to furnish him with a statement of the wages paid from time to time.

The injuries suffered by Millich were not reported to Brewer for about a month or more afterwards. On January 27, 1952. A. E. Brewer signed and forwarded to the Workmen's Compensation Board the standard form for Employer's First Report of Injury, on which he signed as his official title 'Owner', and on which his name 'A. E. Brewer' was entered on the first line opposite 'Name of Employer'. On line 11 of this report, the name 'Pete Mellish' is shown as the name of the injured person, and on the next line, in answer to the question 'Did employee sign the Employee's Register?' the answer was given as 'Yes' and the date given as 'July 30, 1951.' Millich also testified that when he reported the injury to Brewer, Brewer asked, 'Why did you not report it before?' It may be noted at this point that all of the testimony was introduced in behalf of Millich and that there was no conflict in the evidence.

Since the facts are not disputed, the question of whether appellee was an independent contractor or employee is one of law. Raponi v. Consolidation Coal Co., 224 Ky. 167, 5 S.W.2d 1043; Aetna Casualty & Surety Co. v. Petty, 282 Ky. 716, 140 S.W.2d 397.

In answering this question, the approach to be used is that of determining the relation of employer-employee under the Workmen's Compensation Act rather than of master and servant or principal and agent in tort actions. The workmen's compensation approach is broader and uses a more liberal construction favoring the employee. This is in harmony with the purpose of the Act in affording protection to the employee because of his inability to withstand the burdens of injury occasioned by his employment and the resultant loss of work. In Black Mountain Corporation v. Stewart, 272 Ky. 140, 113 S.W.2d 1141, 1143, the principle is stated as follows:

'* * * While the rule of liberal construction of our compensation law required by the act (Kentucky Statutes, § 4987) and followed by the court 'does not dispense with the necessity of the claimant proving his case nor relieve the board of its duty of resting its finding and award on some competent and relevant evidence,' the court would not be authorized to read into the act something that would totally thwart its humane spirit and purposes nor to deny compensation where a liberal construction within the bonds indicated would justify it. * * *' In Robinson v. Lytle, 276 Ky. 397, 124 S.W.2d 78, 80, the Court said:

'* * * we must look to the philosophy of the Compensation Act in arriving at its proper construction. It was the intention of that Act to place the burden for injuries received upon the industries in which they were suffered rather than upon a society as a whole.'

It is provided in KRS 342.004 that the Workmen's Compensation Act shall be liberally construed on questions of law. In this connection, it might be well to call attention to KRS 342.050, wherein it is provided that no employer may by contract or agreement, written or implied, relieve himself, in whole or in part, of any obligation created by this Act. This statute is mentioned for the purpose of showing the intention of the Act to protect the employee and without saying whether this section would forbid or prohibit the type contract involved in this case.

The Courts have used many tests in determining the question at issue. These methods are varied and dependent upon several factors, of which few or many may be present in any one case. Again, the trend has been to favor the award of compensation based upon a finding of employment. In a discussion of the weight of the individual factors involved in deciding this question, it is said in Larson's Workmen's Compensation Law, Volume 1, Section 44.31, Page 643, that independent contractorship is established usually only by a convincing accumulation of the various tests involved, while employment, although a similar accumulation is often attempted, can, if necessary, often be solidly proved on the strength of one of the various factors.

No hard and fast rule can be formulated to determine when a person undertaking to do work for another is an independent contractor...