Fay H. Chamberlain v. Central Vermont Railway Co

• Citation: 137 A. 326,100 Vt. 284
• Parties: FAY H. CHAMBERLAIN v. CENTRAL VERMONT RAILWAY CO
• Decision Date: 04 May 1927
• Court: United States State Supreme Court of Vermont

137 A. 326

100 Vt. 284

FAY H. CHAMBERLAIN v. CENTRAL VERMONT RAILWAY CO

Supreme Court of Vermont

May 4, 1927

February Term, 1927.

APPEAL from findings of fact and order of commissioner of industries awarding compensation, to Supreme Court, Lamoille County. The defendant, Central Vermont Railway Co., appeals. The opinion states the case.

Order vacated, award set aside and claim dismissed with costs. Let the judgment be certified to the commissioner of industries.

J.W Redmond and Horace H. Powers for the defendant.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

WATSON CHIEF JUSTICE:

The defendant in this action, a common carrier of passengers and freight, in the summer of 1926, let a job to Cassius Hurlburt of the town of Cambridge, this State, to saw at Cambridge 160 cords of four-foot wood (purchased by defendant of another person) into 12-inch lengths and load the same on cars at that place, for which he was to be paid and was paid the sum per cord, conceded below. On August 17, 1926, while claimant was working under employment by Hurlburt, assisting him in said work required to be done by him under his said contract with the railway company, claimant was accidentally injured. This accident occurred on the second day claimant worked there, and it arose out of and in the course of the work of his employment.

Acting under the Workmen's Compensation Act, the claimant instituted proceedings before the commissioner of industries as an employee of the defendant railway company within the meaning of the provisions of that act set forth in G. L. 5758, subsection I.

The commissioner, after hearing the matter, made his award of compensation in favor of claimant, setting forth his findings of fact and the law applicable thereto, according to his views in the premises.

In the hearing there had, claimant by his attorney conceded that Hurlburt "was an independent contractor." And the railway company by its attorney conceded that it bought this wood of a certain man (named) of the town of Cambridge, and intended to use it to heat its stations on the Burlington-Lamoille road in the spring and fall; that there were 162 cords of it which Hurlburt sawed under the contract mentioned, and was to get $ 1.75 per cord; that it was necessary for the company to heat its stations and the wood was being prepared for that use; and that the company is a common carrier, etc. The case comes here on defendant's appeal.

The record shows the facts found by the commissioner of industries, and his order awarding compensation in favor of the claimant. It further shows that after said findings and order were filed, and the defendant proposed to take an appeal therefrom, the parties by their attorneys of record, agreed in writing filed in the case, that a transcript of all the evidence and proceedings in said matters before the commissioner, certified by the stenographer who took the same, "shall be treated as a part of said findings of fact and order, and shall be treated by the Supreme Court as a part of the record on appeal." After this was filed the appeal was taken, which states that the "appellant claims that as matter of law, neither said findings of fact nor said order is warranted by the evidence."

One reason given in appellant's brief why the grounds set forth in the appeal should be sustained, is that the claimant's employment at the time of his injury was "purely casual," and consequently he was not an "employee," or "workman" (terms synonymously used) within the meaning of the Workmen's Compensation Act. This involves the jurisdiction of the commissioner of industries, for if the claimant was not an "employee" within the meaning of that act, the case did not come under the provisions of that statute. It would necessarily follow from such circumstances that the commissioner was without original jurisdiction of the subject-matter, and if he had no such jurisdiction, this Court has no jurisdiction on appeal. Mathewson v. Mathewson, 81 Vt. 173, 69 A. 646, 18 L.R.A. (N.S.) 300; Barton v. Sutton, 93 Vt. 102, 106 A. 583.

While findings of fact by the commissioner in such proceedings are ordinarily binding upon this Court, if legally supported by evidence (Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818), yet an exception to this is made where as here the question of the commissioner's jurisdiction is involved, and a certified copy of all the evidence before him is made a part of the record on appeal. In these circumstances the court will examine the evidence in determining the question of his jurisdiction. Thede Bros. v. Industrial Commission, 285 Ill. 483, 121 N.E. 172; Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N.E. 767.

In the instant case, only two witnesses (the claimant and his direct employer, Cassius Hurlburt) were used at the hearing before the commissioner, and their testimony, now a part of the record before us, was all the evidence introduced by either party at that hearing. The evidence thus given was short, and without conflict therein. The claimant, testifying in his own behalf, stated that he lived in the town of Cambridge; that in August, 1926, he was working for Cassius Hurlburt who, at that time, was sawing wood and putting it on the cars; that it was four-foot wood, and he "was handling it on to the saw"; that on August 17, while working under such employment, he received an injury, "two fingers were cut off, the first and middle fingers"; that when so working he was getting four dollars a day for his services; that for twelve weeks prior to the time of his injury he was working on his farm. In cross-examination he testified that he was injured the second day he worked; that his business was that of a farmer, lived on a farm and owned it; that his farm has about three hundred acres, and he had forty-five or fifty head of stock. "Q. You were sawing this wood as a sort of casual employment? A. I went because Mr. Hurlburt came and asked me to help him."

Hurlburt testified that he lived in the town of Cambridge; that in August, 1926, he had a contract with the Central Vermont Railway Company, whereby he took a job of the company to saw 160 cords of wood and put it aboard the train at $ 1.75 per cord; that during the week of August 17, Chamberlain (claimant) worked for him, for which witness was to pay him four dollars per day; that on the second day of working, Chamberlain had an accident, cutting off two fingers on the saw, etc.

The foregoing was all the evidence in the case bearing on the question of claimant's contract with Hurlburt, under which he was working at the time of his injury, and whether his employment was "purely casual," or otherwise.

In the respect particularly under discussion, the Workmen's Compensation Act of this State is essentially like that of the States of Massachusetts, Illinois, Michigan, West Virginia, Iowa (as it now is), and some others not here mentioned. It is of more than usual importance to notice such likeness and the construction given in those states, because of the express requirements of the statute of this State against strict construction, and that its provisions "shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it."

By G L. 5758, subsection II, "workman" and "employee" are defined "to mean a person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer, but not to include a person whose employment is purely casual or not for the purpose of the employer's trade or business," etc. The concluding part of this quotation beginning with the word "but" is an exception to the general description of persons in the preceding part, designated as "workman" and "employee." As this part of the excepting clause contains the disjunctive "or," if the...