Clark's Case

• Decision Date: 11 September 1924
• Citation: 126 A. 18
• Parties: CLARK'S CASE.
• Court: Maine Supreme Court

126 A. 18

CLARK'S CASE.

Supreme Judicial Court of Maine.

Sept. 11, 1924.

Appeal from Supreme Judicial Court, York County, in Equity.

Proceeding under the Workmen's Compensation Act by the widow of Joshua Clark, claimant, opposed by the York Utilities Company, employer. From a decree for claimant, the employer appeals. Appeal sustained, and decree reversed.

Argued before CORNISH, C. J., and DUNN, MORRILL, WILSON, and DEASY, JJ.

Willard & Ford, of Sanford, for claimant.

Robert Payson, of Portland, for respondent.

DUNN, J. Joshua Clark died by accident. His widow claimed and was awarded compensation under the Workmen's Act. Two questions of law are presented on the record: First. Was Mr. Clark, at the time of the accident, an employee or an independent contractor? Second. If he was an employee, was his employment merely casual in nature? The conclusion that he was an independent contractor obviates considering the second point.

In substance the facts are these: The York Utilities Company owned a frame structure in Kennebunk port. The demolition of that structure and the using of the lumber that would be salvaged to erect a building in another place was its purpose. Negotiations with Mr. Clark, whose business was that of a contractor, merged in a written agreement dated August 8, 1923. On Mr. Clark's part the undertaking was to tear down the building, in good and workmanlike manner, sort and grade the lumber, and then pile the lumber in places where the company should say. No time was set for the work to be begun or finished; and what was to he done and how is not more definite in the agreement than in effect it is stated here. The company promised payment at "the regular daily wage charged by him (Clark) as a contractor for himself and said men" (his employees) "for the amount of time put in by said Joshua Clark and his said employees," payable in installments as the work progressed, and the balance on completion, but not to exceed $1,500 in all. Other stipulations of the contract are not now material.

Clark and three men, whom he had hired, began work on the day that the agreement was made, doing the work in their own way and according to their own ideas, or at least according to Clark's ideas, no representative of the company assuming to exercise any control or direction as to its accomplishment. The accident was on the next day; Mr. Clark fell to the ground from the roof of the building on which he was at work, and was so injured that he died soon afterward.

The Workmen's Act furnishes its own definition of the term "employee." This is the defining:

"Employee shall include every person in the service of another under any contract of hire, express or implied, oral or written." Laws 1919, c. 238, § 1, cl. 2.

An "independent contractor," in the expression of Judge Walton, is:

"One who carries on an independent business, and, in the line of his business, is employed to do a job of work, and, in doing it, does not act under the direction and control of his employer, but determines for himself in what manner [the work] shall be done." McCarthy v. Second Parish, 71 Me. 318, 36 Am. Rep. 320.

See, too, Keyes v. Second Baptist, 99 Me. 308. 59 Atl. 446.

One who is not an employee, but an independent contractor for the work, it is held pretty generally, if not universally, is not within the scope of compensation acts. Mitchell's Case, 121 Me. 455, 118 Atl. 287; Vamplew v. Parkgate Iron Company, [1903] 1 K. B. 851; Western Indemnity v. Pillsbury, 172 Cal. 807, 159 Pac. 721; Stephens v. Industrial Commission (Cal. Sup.) 215 Pac. 1025; Flickenger v. Industrial Commission, 181 Cal. 425, 184 Pac. 851, 19 A. L. R. 1150; Perham v. American Roofing, 193 Mich. 221, 159 N. W. 140; Zoltowski v. Ternes Company, 214 Mich. 231, 183 N. W. 11; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506; State v. District Court, 128 Minn. 43, 150 N. W. 211; Hungerford v. Bonn, 183 App. Div. 818, 171 N. Y. Supp. 280; Fancher v. Boston Excelsior Co., 203 App. Div. 294, 196 N. Y. Supp. 793; Lilts v. Risley Lumber Co., 224 N. Y. 321, 120 N. E. 730, 19 A. L. R. 1147; Rheinwald v. Builders' Brick & Supply Co., 223 N. Y. 572, 119 N. E. 1074; Village of Weyauwega v. Industrial Commission, 180 Wis. 168, 192 N. W. 452; Simonton v. Morton, 275 Pa. 562, 119 Atl. 732; Landberg v. State Industrial Com., 107 Or. 498, 215 Pac. 594; Petrow v. Shewan, 108 Neb. 466, 187 N. W. 940; Robichaud's Case, 234 Mass. 60, 124 N. E. 890; Centrello's Case, 232 Mass. 456, 122 N. E. 560: Winslow's Case, 232 Mass. 458, 122 N. E. 561; Eckert's Case, 233 Mass. 577, 124 N. E. 421.

The shade of distinction between an "employee" and an "independent contractor" is not always easy to catch as it flits past. In Texas, where the statutory meaning of employee is the same as in Maine, the Commission of Appeals has said this present year that—

"The term 'employee' as used in [the] act may be said to have a broader and more liberal meaning than the word 'servant,' as that term has been generally understood, in this, that it was intended to include all those in the service of another, whether engaged in the performance of manual labor, or in positions of management and trust, and whether being paid wages or a salary, so long as they remained under the ultimate control of the employer. However, whatever the position occupied by the person employed, he must, in order to come within the provisions of the law, be 'in the service of another.'" Shannon v. Western Indemnity Company (Tex. Com. App.) 257 S. W. 522.

As a usual thing; the principal consideration in determining whether a person is an employee, as distinguished from an independent contractor, is the authoritative right of the employer to control, not simply the result of the work, but the means and methods and manner by which the result is to be attained. If the employer has authority to direct what shall be done, and when and how it shall be done, and to discharge him disobeying such authority and direction, and if the employer would be liable to third persons for misconduct of the worker, the other party to the relationship is an employee. Mitchell's Case, supra; Fidelity & Casualty Company v. Industrial Com. (Cal. Sup.) 216 Pac. 578; Amalgamated Co. v. Traveler's Co., 300 Ill. 487, 133 N. E. 259.

Whether payment is to be by the piece or the job or the hour or the day is indicative but not decisive. Morgan v. Smith, 159 Mass. 570, 35 N. E. 101; Chisholm's Case, 238 Mass. 412, 131 N. E. 161; Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699; Thompson v. Twiss, supra; Freeman v. Life & Health Ass'n, 210 Ala. 459, 98 South. 461; Chicago, etc, Co. v. Bennett, 36 Okl. 358, 128 Pac. 705, 20 A. L. R. 678, and annotation.

What is controlling is whether the employer retained authority to direct and control the work, or had given it to the claimant. Mitchell's Case, supra; Forsyth v. Hooper, 11 Allen, 419; Generous v. Hosmer, 216 Mass. 26, 102 N. E. 912; Chisholm's Case, supra; Singer Mfg. Co. v. Rahn, 132 U. S 518, 10 Sup. Ct. 175, 33 L. Ed. 440. The test might be said to be simple enough, yet it is net infallible, and the attempt to demarcate the line of distinction "has involved * * * much perplexity and some inconsistency." Kelley's Dependents v. Hoosac Co., 95 Vt. 50, 113 Atl. 818.

Of course, determination must be in the light that the evidence affords. Where the facts are not in dispute, and but one sensible conclusion is inferable, whether it is reached by natural reasoning or the application of fixed rules of law, the question of the relationship is one of law. But where the evidential facts are in dispute, or where ordinary minds might ordinarily conclude oppositely from the same elemental premises, then the question is for the trier of facts.

An indispensable finding, precedently to awarding compensation, was that the relation of employer and employee existed between the York Utilities Company and Mr. Clark when the latter got hurt. If, in truth and in fact, there was evidence of legal weight from which that was found, although the evidence was conflicting, review of the record can go no further, for such is the inhibition of the Legislature. Laws 1919, c. 238, § 34.

What was before the Industrial chairman to prove that Mr. Clark was an employee? The written agreement itself, testimony by the company's manager concerning what led to the making of the agreement, and that Clark and his men were regarded by the manager as being under his supervision, though he never oversaw or superintended them. And there was evidence that the names of Mr. Clark and the men of his crew were carried on the wage roll of the company as carpenters.

The writing is unambiguous and embodies the entire contract. That which the parties specifically and finally agreed to do, rather than what brought them to agreeing, is the significant thing. Testimony by the manager of the authority he imagined he had, but never exercised, and of which Clark did not even know, did not strike efficacy from the document and leave it limp and scarcely more than waste paper, for it could not. The case was not that of an interpretation mutually by the parties, often resorted to where verbal meaning is not clear, or where the original agreement was modified by express assent or practice under it; but it was the conception of an employee of one of the parties, identified with the writing only as an attesting witness, as he passed the matter through the crucible of his mind, when sympathy may have warped his judgment and his reasoning processes may not have been cold. The objection interposed to the reception of the testimony ought to have been...