Diamond Block Coal Co. v. Sparks

• Decision Date: 15 May 1925
• Citation: 209 Ky. 73
• Parties: Diamond Block Coal Company v. Sparks, et al.
• Court: United States State Supreme Court — District of Kentucky

209 Ky. 73

Diamond Block Coal Company v. Sparks, et al.

Court of Appeals of Kentucky.

Decided May 15, 1925.

1. Master and Servant — Finding of Compensation Board on Facts Not Disputed is Finding of Law Reviewable. — Finding of Workmen's Compensation Board on facts not disputed that deceased was employee and not independent contractor is finding of law reviewable by Court of Appeals.

2. Master and Servant — Person Building Footbridge Held Independent Contractor. — One employed to rebuild footbridge according to plans and specifications furnished him by the person desiring the work done, and to whose discretion the time and manner of doing the work and of employing assistants were left held an independent contractor within Workmen's Compensation Act.

Appeal from Perry Circuit Court.

BLAKEY, DAVIS & LEWIS and H.F. BOEHL for appellant.

EVERSOLE & CAMPBELL for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

Whether or not appellee is entitled to compensation under the Workmen's Compensation Act on account of the death of her husband, H.H. Sparks, depends on whether at the time of his death he was an employee of the appellant herein or doing work for it as an independent contractor. The Workmen's Compensation Board found that he was an employee and awarded compensation which award was affirmed on appeal to the circuit court.

There is no dispute concerning the facts, and therefore the question on the facts is one of law, and the finding of the board under such circumstances is a finding of law which may be reviewed by this court. Bates & Rogers Construction Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Rusch v. Louisville Water Co., 193 Ky. 698, 237 S. W. 389. The evidence discloses that the appellant was desirous of rebuilding a footbridge across the Kentucky river and entered into an arrangement with Sparks for that purpose. The arrangement was made on behalf of appellant through its general superintendent, Mr. Bowers. By it, Sparks was to reconstruct the bridge out of materials which were then on the ground. Bowers, at the time the arrangement was made, gave Sparks directions as to how he wanted the work done, and while Sparks was doing the work Bowers observed it from time to time to determine that it was being done according to the directions he had given. Sparks was to receive $150.00 for the work, out of which he was to employ his own assistants and pay them. It appears that Sparks at the time he entered into this arrangement did not want to take the job at a flat contract price, as he was inexperienced in estimating jobs, and so it was agreed that the price of the work should be $150.00, but at all events Sparks was to get at least ninety cents an hour for the time used on the job. While the work was going on, Sparks furnished appellant with the time of his assistants whom he employed and directed, and whom he alone had the right to discharge, and appellant permitted these assistants to draw from its commissary merchandise up to the value of the time so turned in, the same being charged against Sparks' compensation under the arrangement. Out of an abundance of caution, appellant required Sparks, as it did all people who did any work for it of any kind or character, to sign the compensation register. Sparks was killed before the bridge was rebuilt, and appellant settled with his widow, the appellee herein, for what Sparks had done, on the basis of paying her ninety cents an hour for the hours her husband had worked. Sparks in doing the work did it on his own initiative. Appellant had no control over the hours he should work, when he should start, or when he should quit, nor did it have any right or authority to discharge him or call him off the work without cause. Under these facts, we are of opinion that Sparks was an...