Crawford v. Lumbermen's Mut. Cas. Co.

• Decision Date: 07 June 1966
• Docket Number: No. 988,988
• Citation: 126 Vt. 12,220 A.2d 480
• Court: Vermont Supreme Court
• Parties: Fred B. CRAWFORD v. LUMBERMEN'S MUTUAL CASUALTY COMPANY.

Page 480

220 A.2d 480

126 Vt. 12

Fred B. CRAWFORD v. LUMBERMEN'S MUTUAL CASUALTY COMPANY.

No. 988.

Supreme Court of Vermont.

June 7, 1966.

A. Pearley Feen, Burlington, for plaintiff.

Downs & Rachlin, St. Johnsbury, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The defendant insurer presents this appeal from a declaratory decree of the court of chancery for Orleans County. The court adjudged the defendant to be obligated to defend an action in negligence against the plaintiff and John LeBlond. The law action was instituted in Windsor County in behalf of Clinton Willey, who was injured May 18, 1960, while a passenger in the plaintiff's farm truck operated by the plaintiff's regularly employed farmhand, John LeBlond.

The defendant disclaimed coverage on the strength of a provision of the insurance agreement which excludes liability for 'bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefore (sic) are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured.' The decisive question is whether Willey, the claimant in the law action, was an employee of the plaintiff and whether his injuries arose out of and in the course of his employment by the plaintiff.

The chancellor answered this question in the negative. He concluded in his findings that Clinton Willey was not an employee of the plaintiff at the time of the accident, that he was not performing general farm work as an employee of the plaintiff and that his injury did not arise out of and in the course of employment by the plaintiff.

The subordinate facts upon which this conclusion rests are reported in the findings. At the time of the accident the plaintiff, a practicing dentist in Newport, owned two farms in that area, referred to as the northern and southern farms. He employed John G. LeBlond as a full time general farm worker. Occasionally the plaintiff engaged temporary help to assist in the farm operation.

Sometime in April preceding the accident, the plaintiff advertised in a local newspaper for a man to cut cedar posts at ten cents a post. Clinton Willey, a retired municipal employee, responded. It was agreed that Willey was to cut posts at his own selection from a general area on the farms designated by the plaintiff. He was to be compensated at a unit rate for each post cut.

Willey was not physically well and he cut posts when his health permitted. He planned his own work. The number of posts cut and the time and place of cutting were according to his own choice. No time records were kept of the time he spent in cutting and no social security or income taxes were withheld by the plaintiff.

The chancellor found: 'During the course of his post cutting, Willey was his own boss. Plaintiff exercised no control over him. He was sort of an independent contractor so far as cutting posts was concerned.'

Between May 1 and May 14, 1960, Willey worked on the plaintiff's farm repairing fences and was paid for this work. This particular work was completed on May 14 and Willey resumed cutting cedar posts on his own time.

On May 18, 1960, the plaintiff transported Willey to the south farm for the purpose of permitting him to cut fence posts. He left Willey at this location and departed from the farm. The plaintiff's hired man, LeBlond, was preparing to transport some cattle to the north farm. Without being requested by anyone, Willey joined LeBlond and later assisted him in loading and unloading the livestock for pasture at the north farm. On the return trip the truck was involved in an accident and Willey sustained severe personal injuries. The findings report that Willey was riding with LeBlond at the time of the accident 'because he wanted to and not because he had been employed by the plaintiff to accompany LeBlond to assist him in the transportation of cattle.'

Willey's mental condition following the accident was such that he was incapable of asserting any claim for labor previously performed for the plaintiff. In December 1960 Willey was paid ten dollars and twenty cents for cutting one hundred two posts.

The chancellor characterized the work performed by Willey, aside and apart from the cutting of cedar posts, as 'purely occasional-not regular, periodic or certain.' His findings go on to report that he is unable to find the plaintiff exercised any control or that he had any right to control Willey on the date of his injury.

In so doing, the chancellor referred to conflicts in the evidence. He made specific reference to a written statement procured by an investigator of the defendant, and signed by the plaintiff and his wife, about three weeks after the accident. Except for a correction interlineated and initialed before signing, the statement was written by the defendant's representatives, recording answers given by the plaintiff. The writing was offered in evidence by the plaintiff and received as plaintiff's Exhibit 1. Concerning the working status of the accident victim, it states:

'A few days before his accident on 5-18-60, Clinton Willey had been working on several farm chores, including fence posts, in my employ. He was working at the time of the accident.-I had paid Clinton Willey 10cents per fence post for cutting them and when he did other routine farm (F.C.) work one dollar per hour. (F.C.)

At the time of his accident LeBlond and Willey were returning from bringing young stock to the northern farm and were going to the southern farm. Mr. Willey was on an hourly rate at that time. Mr. Willey is a retired municipal employee and has worked for me only about two weeks before his accident of 5-18-60.-

Until the present time, all money paid by me to Clinton Willey has been paid for farm work and not for post work. On May 14, 1960, I paid him $43.00, check No. 15312, for farm work at $1.00 per hour. He had received no post money at that time or to date.'

The plaintiff explained that the statement was hurriedly given while he was about to attend a waiting patient. The plaintiff also testified, on cross-examination, that the insurance adjuster had been to see him two or three times before, that the plaintiff was anxious to have the case settled and the investigator indicated that he thought the written statement would expedite the settlement.

The findings report the facts in the aspect most favorable to the plaintiff. The defendant candidly concedes that there is evidence to support the findings reported by the chancellor. The appellant attacks the chancellor's adjudication of the issues of fact as an abuse of discretion, placing principal reliance on the extrajudicial written statement quoted above.

It is established by rule of law in countless decisions since 1824, and by statute as well, that findings of fact must stand if there is any credible evidence fairly and reasonably supporting them. 12 V.S.A. § 2385; Noble v. Jewett's Admr. (1824) 2D. Chipman 36; deNeergaard v. Dillingham, 123 Vt. 327, 330, 187 A.2d 494; Savard v. George, 125 Vt. 250, 254, 214 A.2d 76.

The facts reported by the chancellor have the standing of a verdict of the jury which has been expressly approved by the trial court. Cook v. Holden, 113 Vt. 409, 412, 35 A.2d 353. Although this Court has the power to set the lower court's findings aside, we will not do so where the evidence is in conflict, merely because the evidence preponderates against them. Putnam v. Woodward, 111 Vt. 39, 41, 10 A.2d 186. Intervention on appeal is justified only when contrary proof so predominates the controversy that the record establishes no reasonable basis upon which the findings can stand. Platt, Admx. v. Shields and Conant, 96 Vt. 257, 272...