Dudley, In re

• Decision Date: 27 August 1969
• Citation: 256 A.2d 592
• Parties: In re Henry O. DUDLEY, Employee-Appellant, from Decree of the Industrial Accident Commission.
• Court: Maine Supreme Court

Page 592

256 A.2d 592

In re Henry O. DUDLEY, Employee-Appellant, from Decree of

the Industrial Accident Commission.

Supreme Judicial Court of Maine.

Aug. 27, 1969.

David A. Nichols, Camden, for plaintiff.

Lawrence P. Mahoney and David C. Norman, Portland, for A. C. McLoon & Co.

Before WEBBER, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

DUFRESNE, Justice.

This is an appeal under the Workmen's Compensation Act by Henry O. Dudley from a pro forma decree of the Superior Court affirming the decision of the Industrial Accident Commission dismissing his petition for compensation following the Commission's finding as a matter of law that at the time his injury was sustained the appellant was not an employee of A. C. McLoon & Company but an independent contractor. 39 M.R.S.A., Sec. 1 et seq.

Did the commission fall into legal error in deciding on the undisputed facts of the instant case that as a matter of law the petitioner was in the status of an independent contractor at the time he sustained the personal injury alleged in his complaint? We so rule.

On April 22, 1967 Dudley sustained an alleged ruptured disc while harvesting rockweed along the seacoast in the City of Rockland. He was then and had been for more than four years employed generally by A. C. McLoon & Company in its lobster business operated at Rockland and his duties at his employer's lobster-shop consisted of boiling, culling and packing lobsters, together with other assignments including driving the company truck for which he was paid at the rate of $1.50 an hour on the basis of a 54-hour week. Throughout his employment by McLoon and at the request of his employer's foreman, Dudley would gather from ledges along the shore in the area the rockweed which the company needed in its business of packing and shipping lobsters in barrels. This additional work away from the premises but for the benefit of the lobster company would be carried on during weekends but, upon his foreman's notice that the supply was getting low, sorties for that purpose would be made during the week after regular working hours. For this extra pursuit Dudley was paid at the rate of $0.50 per barrel. Petitioner's back injury was sustained on a Saturday when he was pulling rockweed from rocks and loading them into a dory. The claimant did testify that sometimes his brother, a McLoon employee, would go along with him, but that as a rule he would go alone, and that when fetching rockweed he was not under anybody's supervision. No further factual details were submitted.

The question before us is whether Mr. Dudley's status at the time of the alleged accidental injury was that of an employee or an independent contractor. Under the Workmen's Compensation Act, an employee is defined to be 'every person in the service of another under any contract of hire, express or implied, oral or written' with certain exceptions inapplicable here. 39 M.R.S.A. § 2(5). One who is not an employee, but an independent contractor, is not within the scope of our industrial compensation act. Kirk v. Yarmouth Lime Co., 1940, 137 Me. 73, 15 A.2d 184; Clark's Case, 1924, 124 Me. 47, 126 A. 18. The Commission found as a matter of law that under the recited facts of the instant case Mr. Dudley was an independent contractor. This finding is not binding upon us. There is no factual dispute and the issue whether the petitioner was an employee within the Workmen's Compensation Law or not is one of law reviewable by this Court. Kirk, supra; Murray's Case, 1931, 130 Me. 181, 184, 154 A. 352, 75 A.L.R. 720; Clark's Case, 124 Me. 47, 50, 126 A. 18, supra. We are not bound by the reasoning of the Commission. Boyce's Case, 1951, 146 Me. 335, 340, 81 A.2d 670. In applying the general principles of law governing the relations of master and servant to cases involving the Workmen's Compensation Act, we must keep in mind the explicit legislative mandate for us to construe the law liberally in favor of the workman. Kirk, supra, 137 Me. 73, 74, 15 A.2d 184; Murray's Case, supra, 130 Me. 181, 185, 154 A. 352, 75 A.L.R. 720. In an action under the Act by a person who in addition to his regular work under his general employment with the defendant performs other special work which benefits his employer and forms an integral part of the regular operation of the business of the employer is presumed to be in the relationship of employee-employer, and if the defendant seeks to avoid liability under the Act on the ground that such person was an independent contractor, the burden is upon the employer who asserts such defense to show the fact. Murray's Case, supra, 130 Me. 181, 184, 154 A. 352, 75 A.L.R. 720; Dobson's Case, 124 Me. 305, 309, 128 A. 401, 42 A.L.R....