Burt Blake, Alias Burt Martel v. American fork & Hoe Co.

• Decision Date: 09 January 1926
• Citation: 131 A. 844,99 Vt. 301
• Parties: BURT BLAKE, ALIAS BURT MARTEL v. AMERICAN FORK & HOE COMPANY
• Court: Vermont Supreme Court

131 A. 844

99 Vt. 301

BURT BLAKE, ALIAS BURT MARTEL v. AMERICAN FORK & HOE COMPANY

Supreme Court of Vermont

January 9, 1926

November Term, 1925.

APPEAL by plaintiff from order of Commissioner of Industries denying compensation. Trial by court at the June Term, 1925 Caledonia County, Willcox, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Searles & Graves for the plaintiff.

Shields & Conant for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

From an order of the Commissioner of Industries disallowing his claim for compensation, the claimant appealed to the Caledonia county court where, on facts found by the court, defendant had judgment, and the case is here on claimant's exceptions.

The only question for review is whether on the findings, which claimant admits show the "exact situation" between him and defendant at the time of the accident, the court erred in rendering judgment for the latter. The judgment must stand, if the findings fairly tend to support it.

The findings material to the question for consideration are these: Claimant received the injuries for which he is seeking compensation while engaged in sawing up edgings, so-called on a circular saw owned by defendant and situated in its St Johnsbury plant known as the Ely factory. While thus engaged claimant was not an employee of defendant, but was in the employ of one Hiram Johnson from whom he received all directions concerning his work, and also his pay. Defendant then owned and operated said factory, and was there engaged in manufacturing from rough lumber rake, hoe, and shovel handles for pecuniary gain. It employed about twenty-five men regularly. In manufacturing such handles, defendant produced quantities of edgings from two to four or six feet long. "To avoid an accumulation of such edgings or to derive some revenue from the same, or both, the defendant entered into an arrangement with one Hiram Johnson, whereby it sold such edgings to said Johnson for the sum of $ 2.25 per load, and by such arrangement with said Johnson he had the privilege of using a circular saw in the plant of the defendant to cut up such edgings into lengths suitable for sale as aforesaid. The price of $ 2.25 charged by the defendant to said Johnson included the privilege of the use of said saw, the defendant company furnishing the electric power to run said saw." Such sale to Johnson was "of pecuniary gain" to defendant, and it derived some advantage by having such edgings removed. As fast as edgings were produced, defendant caused them to be placed near the saw where they were cut up by claimant under Johnson's directions, but they were not charged to Johnson until he had caused them to be cut up and loaded upon wagons or trucks for delivery to his customers, and had reported same to defendant's office. He was required to report each load before it was taken from defendant's premises, and under the original arrangement was to pay for it then, but this was later modified so that he paid weekly or at irregular intervals. This entire arrangement was terminable at the pleasure of either party. Defendant had no control over Johnson respecting the manner of cutting up such edgings, the price for which he should sell them, or to whom he should sell them, although it told him what other dealers were getting for waste wood, and suggested that he charge the same. Defendant gave...