Farmer v. Purcell
| Decision Date | 08 October 1921 |
| Docket Number | 23,350 |
| Citation | 109 Kan. 612,201 P. 66 |
| Parties | ROBERT FARMER, Appellee, v. FRANK PURCELL, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1921.
Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
COMPENSATION ACT--Injuries to Employee of Independent Contractor--Contractee Not Liable. The owner of a sawmill had occasion to remove a quantity of sawdust that had accumulated. He arranged for his employees to feed it into a chute through which by an endless chain it was conveyed to an elevated bin from which it could be loaded into wagons by gravity. He contracted with a person to take it from the bin as fast as should be necessary to prevent such accumulation there as to delay the work, and remove it to a designated place, in consideration of the payment of a fixed price per hour. A driver employed by such person was injured while attempting to load a wagon from the bin and sued the mill owner under the compensation act. It is held that such person was an independent contractor and the plaintiff was not an employee of the defendant.
W. L. Wood, of Kansas City, for the appellant.
L. O. Carter, of Kansas City, for the appellee.
Robert Farmer sued Frank Purcell under the workmen's compensation act on account of an injury received at a time the plaintiff claims to have been employed by the defendant. The principal ground of defense was based upon the claim that at the time of the injury the plaintiff was not working for the defendant, but for an independent contractor, George E. Holter, who was doing a particular piece of work for the defendant under a special agreement. The plaintiff recovered judgment and the defendant appeals, his chief contention being that the evidence did not support a finding that the plaintiff was in his employ. The case was submitted to the jury under an instruction that if Holter was an independent contractor the plaintiff could not recover.
There is no substantial conflict in the evidence bearing upon the question at issue. The material facts as established by the evidence introduced by the plaintiff may be thus summarized:
The defendant had for some years been operating a sawmill and factory. A large quantity of sawdust had accumulated on the premises, which he desired to have removed. He caused to be constructed an elevated bin holding about four wagonloads, into which the sawdust was conveyed through a chute by an endless chain. Employees of the defendant fed the sawdust into the conveyor by means of horse-drawn scrapers. The bin referred to was so arranged that a wagon could be driven under it and filled with sawdust by drawing out a slide by means of a handle made of a piece of belting or rubber hose. The defendant by his superintendent entered into an agreement with Holter to pay him two dollars an hour to haul the sawdust away from the bin--to take it away as fast as it was fed into the bin irrespective of how many teams this would require--to keep the bin clear so long as the work of removing the heap of sawdust lasted. Holter arranged with O. H. Groomer to share the work with him on a fifty-fifty basis. The work was done in accordance with this agreement. Holter and Groomer each furnished one wagon and team. Holter hired the plaintiff to drive his wagon a part of the time, paying him 35 cents an hour, or $ 3.50 a day. The defendant paid Holter and Groomer by checks running to them jointly, and Holter paid the plaintiff. The plaintiff was injured in this manner: He drove the wagon under the outlet of the bin and undertook to draw the slide. As he did so the handle broke and he fell from the wagon to the ground. In the original agreement between the defendant's superintendent and Holter it was specified that the sawdust was to be dumped one wagon-load deep clear across the tract on which it was to be deposited. Afterwards the superintendent, seeing that if this were done there would not be enough sawdust to fill up some low places, asked Holter to fill up one of them first, and this was done. He also asked to have a few of the loads dumped in the lumberyard to make a road, and this also was done--according to his testimony as an accommodation to him. Except as has been stated the defendant or his superintendent exercised no control over the manner in which the work of hauling away the sawdust was carried on. The superintendent testified that he could have discharged Holter if he had failed to comply with his contract to keep the bin empty.
We do not regard these facts as establishing the relation of employer and employee between the defendant and the plaintiff. There is nothing to suggest any want of good faith in the arrangement entered into between the defendant and Holter, such as characterized the contract passed upon in Nelson v. Cement Co., 84 Kan. 797, 115 P. 578; nor was the work in which the plaintiff was engaged intrinsically dangerous as in the case of the mining operations involved in Laffery v. Gypsum Co....
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