Franks v. Carpenter
| Decision Date | 14 February 1922 |
| Docket Number | 34319 |
| Parties | A. L. FRANKS, Appellee, v. GEORGE W. CARPENTER et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.--R. G. POPHAM, Judge.
APPEAL from an award under the Workmen's Compensation Act. The facts are fully stated in the opinion.
Affirmed.
L. N Tillotson and Johnson & Donnelly, for appellants.
Charles Penningroth and Redmond & Stewart, for appellee.
The appellant George W. Carpenter resides, and is engaged in the plumbing business, in Cedar Rapids, Iowa. Some time prior to November 1, 1918, he obtained a contract to do certain plumbing in a school building then in process of erection at Conroy, Iowa. Appellant Carpenter also engaged to construct a sewer line from a septic tank, which he had placed near the schoolhouse, to a line of tiling about 300 feet distant, and arrangement or contract was made by him with one I. W Hudson, who also resided at Cedar Rapids and occasionally engaged as a contractor in putting in sewers, to go to Conroy and to make the excavations and construct the sewer from the septic tank to the tile drain.
One of the principal questions in the case is whether Hudson was an independent contractor or whether he was Carpenter's employee, only.
On November 1, 1918, Bert Franks, who had gone with Hudson from Cedar Rapids to assist in putting in the sewer, was killed by the caving of the sides of the excavation, covering him with dirt. This action is brought on behalf of the deceased's minor daughter, by her next friend. Hudson had previously been employed on other jobs by Carpenter. Carpenter evidently knew him to be efficient in making excavations and laying sewers. The arrangement between Hudson and Carpenter was that the former would go to Conroy, secure such help as was necessary, make the excavation, and lay the sewer pipe or tile, so as to connect the septic tank with the tile drain already installed. In addition to Franks, Hudson secured the assistance of two other men. He acted as foreman, provided the work, kept the time, and determined the number of and what hours the men should work each day, and notified Carpenter of the amount required to pay their wages. Hudson and each of the men employed on the job received 50 cents per hour. Hudson furnished his own tools with which to do the work, but did not furnish any of the material used therein. Carpenter was not present while the work was being done, and did not, in fact, direct Hudson or the men employed with him, as to how the work should be done. He did, however, advise Hudson that they should commence the excavation at the tile drain, which they did. In addition to 50 cents per hour for his time, Carpenter paid Hudson for oil and gas used in his automobile for 12 days, and also paid him for the use of his automobile in taking Franks to Conroy. The arbitration board found in favor of the claimant. This finding was sustained on review by the industrial commissioner and, upon appeal thereto, by the district court.
Three propositions are argued by appellants, as follows: (a) That the undisputed evidence shows that deceased, at the time of his death, was the employee of Hudson, an independent contractor, and not of Carpenter; (b) that Carpenter was not served with notice of the death of Franks, as required by the provisions of Section 2477-m8 of the 1913 Supplement to the Code; and (c) that the policy in suit does not provide indemnity for the loss sustained.
I. Was Franks, at the time of his death, the employee of Carpenter or of an independent contractor? If he was the employee of the former, then he sustained such relation to Carpenter as to entitle the plaintiff to compensation on the basis allowed in the court below. There is no absolute rule for determining whether, under a given state of facts, the one doing or having charge of the work is an independent contractor or an employee. We said in Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916:
In the same case, the writer of the opinion quoted the following from Thompson on Negligence (2d Ed.), Section 629:
"The test lies in the question whether the contract reserves to the proprietor the power of control over the employee."
The same general rule was approved in Norton v. Day Coal Co., 192 Iowa 160, 180 N.W. 905. Applying this test to the facts of the case before us, we conclude that the finding of the commissioner that, at the time of the death of Franks, both Franks and Hudson were the employees merely of Carpenter is fully sustained by the evidence. Carpenter, at the time Hudson was employed by him, knew that Hudson understood the work of constructing sewers and would be a good man to place in charge of the work at Conroy. Nothing was said between Carpenter and Hudson as to the manner of doing the work, nor is there anything in the contract or arrangement between them, or in the manner in which it was carried out, to indicate that Carpenter in any respect waived his right to control or direct the time or manner of making the excavation and laying the drain. There was no occasion for any specific reservation of this right. It is true that Carpenter was not present at any time during the progress of the work, but, manifestly, he had the right to discharge Hudson, Franks, or any other employee on the job, and to absolutely direct Hudson in everything he did in the work of putting in the drain. The fact that he refrained from doing so is not of controlling importance. Hudson furnished none of the material, and was paid 50 cents per hour for his time, the same as the other employees. He assumed the position of foreman, but this was clearly contemplated by Carpenter at the time of his employment. The tools furnished by Hudson were simple tools, and, under his contract with Carpenter, he assumed no liability and incurred no financial responsibility. He stood no chance to make a profit or to suffer a loss. He kept the time of himself and the other men and delivered it to Carpenter, who gave or sent him a check for the amount shown thereby to be due the men. Hudson merely distributed the money sent him by Carpenter. The commissioner gave considerable significance to the fact that Carpenter paid Hudson for taking Franks in his automobile to Conroy. This is an important fact.
Significance is also given by counsel for appellants to the fact that Hudson and the men employed with him determined how the work should be done, the number of hours they would work each day at what time they would begin, and at what time they should quit, and what time they would take at noon for lunch. These were all matters within the control of Hudson, as...
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