Crowder v. Haymaker

• Decision Date: 14 March 1935
• Citation: 164 Va. 77
• Parties: ROY C. CROWDER AND BITUMINOUS CASUALTY CORP. v. JOHN G. HAYMAKER.
• Court: Virginia Supreme Court

Page 77

164 Va. 77

ROY C. CROWDER AND BITUMINOUS CASUALTY CORP. v. JOHN G. HAYMAKER.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

WORKMEN'S COMPENSATION ACT — Injury Suffered While Working in Mine — Question Whether Claimant Was Servant or Independent Contractor — Case at Bar. — In the instant case claimant was injured by an explosion of dynamite while working in a coal mine. Claimant and another had sought employment from the defendant Crowder, who was the lessee of certain coal lands and conducting a small mining operation thereon. He had no place for them but told them they might operate an abandoned mine near-by, they to take the mine as they found it, furnish their own explosives, caps, etc., and Crowder to furnish shovels, picks, etc., and to pay for the coal mined and delivered at the mine's mouth at a certain sum per ton. Claimant and his companion operated the mine in partnership and were so operating it when the accident occurred. There was no evidence that defendant Crowder ever undertook to assert any control, although he visited the mine from time to time.

Held: That claimant was an independent contractor and defendant was not liable. In the circumstances of the case the relationship of master and servant could not exist. A servant must be subject to some measure of control.

Appeal from an award of the Industrial Commission of Virginia.

The opinion states the case.

Bandy & Bandy and F. A. Lewey, for the appellants.

Hall, Buford & Leftwich, for the appellee.

HOLT, J., delivered the opinion of the court.

This is an appeal from a judgment of the Industrial Commission of Virginia. John G. Haymaker, claimant, was injured while working in a coal mine. By an accidental explosion of dynamite he has been blinded in one eye and vision in the other is almost destroyed. The Commission was of the opinion that this injury arose out of and in the course of his employment by Roy C. Crowder (his employer), and has found accordingly, Commissioner Nickels dissenting. The judgment is against Crowder as employer and the Bituminous Casualty Company as insurer.

If we accept as true complainant's version of all disputed facts, and as true evidence for the employer and insurance carrier on matters not in dispute, this appears: Crowder was the lessee of certain coal lands in Botetourt county, owned by the Virginia Mineral Corporation of New York. To it he paid twenty-five cents a ton royalty for coal mined by him. In the latter part of 1932 he was conducting a small mining operation on this leased land. Haymaker and one George Huffman sought from him employment there. He had no place for them but told them that they might work an abandoned near-by mine which had not been worked for many years and which he had never worked. They took this mine as they found it and were to furnish their own explosives, caps, fuses, etc. Crowder, on his part, agreed to furnish shovels, picks, etc., and was to pay them for coal mined and delivered on the platform at the mine's mouth from $2 to $2.50 a ton, the price within these limits to be governed by the market price of coal. There was no limit put upon the duration of this operation or the quantity of production and no reference was made to timbering the shaft or to other safety devices. In other words, these men took the mine as they found it. Haymaker said that he and Huffman operated it in partnership and divided receipts equally. Later they associated with them one Woodrow Gusler, and while he was working shared equally with him their net receipts, each man taking one-third.

Crowder, who was, as we have seen, working a near-by mine, visited the Haymaker and Huffman operation from time to time, and doubtless gave them the benefit of his advice; but it nowhere appears that he undertook to assert control. This situation continued until the date of the accident which was in August, 1933.

If Crowder was an employer within the meaning of the Workmen's Compensation Law, he is liable and the judgment of the Commission must stand. If Haymaker and Huffman were independent contractors, then he is not.

In Mann Lynchburg, 129 Va. 453, 106 S.E. 371, 373, this court said: "The statute is to be liberally construed to the end that its wise and humane purpose may be advanced; but we cannot extend its provision by construction so as to cover persons or occupations not within its scope and intent.

"The act, as its title shows, relates to industrial accidents, and its well known purpose was to substitute for the unsatisfactory common-law remedies a speedier and simpler and more equitable form of relief for personal injuries sustained by persons engaged in hazardous occupations. It would seem clear from the history and purposes and general provisions of the act that the legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant." Board of Supervisors Lucas, 142 Va. 84, 128 S.E. 574.

The Workmen's Compensation Law does not undertake to change, as between themselves, the rights of owners and independent contractors. This statute leaves that relationship as it was at common law and we must look to it in determining who is master and who is servant.

The rule which we have cited with approval in Baker Nussman, 152 Va. 293, 147 S.E. 246, 249, is thus stated: "In the law of...