Heine v. Hill, Harris & Co., Inc.

• Decision Date: 13 June 1925
• Docket Number: 2291
• Citation: Heine v. Hill, Harris & Co., Inc., 2 La.App. 384 (La. App. 1925)
• Parties: WILLIAM C. HEINE v. HILL, HARRIS & COMPANY, INC
• Court: Court of Appeal of Louisiana — District of US

2 La.App. 384

WILLIAM C. HEINE v. HILL, HARRIS & COMPANY, INC

No. 2291

Court of Appeals of Louisiana, Second Circuit

June 13, 1925

Rehearing refused July 11, 1925.

Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. John A. Williams, Judge.

This is a suit under Employers' Liability ActNo. 20 of 1914 for compensation.

There was judgment for defendant and plaintiff appealed.

Judgment reversed.

White Holloman & White, of Alexandria, attorneys for plaintiffappellant.

Thornton Gist & Ritchey, of Alexandria, attorneys for defendant, appellee.

ODOMJ. CARVER, J.

OPINION

ODOM, J.

This is a suit under the Workmen's Compensation. Law.

Plaintiff sues defendant to recover $ 18 per week for 400 weeks commencing September 26, 1923, and for the further sum of $ 250 for medical services, hospital bills, etc., incurred during his illness.

He sets out as a cause of action that he was employed by defendant to put a roof on a building owned by Dave Caplan which defendant had contracted to cover, and while at work putting on said roof he fell and as a result of the fall his back was fractured, his lower spine and lower limbs completely paralysed, and that he is totally disabled to do any work of a reasonable character.

There is no dispute of the fact that while putting a roof on the said building the plaintiff fell and was injured as above set forth.

The only defence to the suit is that the plaintiff was an independent contractor and not an employee.

The lower court held that the plaintiff was an independent contractor and rejected his demand.From that judgment plaintiff has appealed.

OPINION.

The defendant, Hill, Harris & Co. Inc., had a contract to put a roof on a house belonging to Dave Caplan in Alexandria, Louisiana.It employed plaintiff to do the work, and while putting this roof on plaintiff fell and injured his back and as a result of the injury his lower spine and lower limbs are paralysed so that he is totally disabled to do work of any reasonable character.

If he is entitled to recover at all, he should recover what he sues for, to wit: $ 18 per week for 400 weeks, the maximum amount allowed under the law.

The only question presented for our determination is, whether plaintiff was a servant or employee of defendant or whether he was an independent contractor.If an independent contractor, he cannot recover, of course.

The defendant, Hill, Harris & Co. Inc., is engaged in a general building material business.It handles practically everything that goes into the construction of houses, and along with other material it handles a roofing material known as Bird & Son's roofing.This is a composition roofing which is put up in rolls.

The defendant sells this roofing by the roll or "square" to the customer, to be applied by the customer, or it sells it "applied", that is, it sells it and takes contracts to put roofs on houses for so much per "square", furnishing all material and labor to complete a roof and guarantees the roof it puts on of that material for a period of ten years.

The defendant does quite an extensive roofing business.Decidedly more than any other concern in Alexandria.While it sells Bird & Son roofing to any and all customers who desire it, the record shows that it makes a specialty of contract work, that is, selling the Bird & Son roof applied.It had a city salesman who went out into the city and solicited business of this kind for it.When a customer was found, it made a proposal, set out in a printed form which reads as follows:

"Job No.

"Roofing Proposal No.

"To

"Address:

"Dear Sir:

"We agree to furnish and apply ___ Bird & Son's ___ ... Roofing on ___ located at ___ for the sum of ___ complete (including)(excluding) flashings of all kind in accordance with specifications attached hereto which are a part of this agreement under the following terms and conditions.This proposal is limited to thirty days acceptance.We agree to have application work done in accordance with manufacturer's specifications, in a neat and workmanlike manner.Work to be completed providing building is in proper condition for roofing application."

Following the above is a printed guarantee in which it is stated that Bird & Son, Inc., guarantee its roofing material to be free from manufacturing defects, and if applied according to the specifications found on each roll will give satisfactory service for ten years.

This is signed by Hill, Harris & Co. Inc., and under the signature is the following:

"W. C. Heine does our application work."

If this proposal is accepted by the owner of the building, defendant"books the job" and at once communicates with Heine, the plaintiff in this case, that it has secured the contract to do the work.Defendant sends all the material necessary for the roof to the building and Heine applies it.

The agreement which defendant has with Heine is as follows: He is to furnish all labor and all tools and implements necessary for putting on the roofing and he received $ 1.50 per square for ordinary roofing and $ 2.00 per square if built up roofing.As stated, defendant furnishes and delivers at the building all the material.

Heine worked as a laborer himself and employed whatever helpers he desired--ordinarily only one, but he had, on occasion, employed as many as two.He fixed the price to be paid his helpers, paid them when he saw fit and discharged them at will.He set his own hours of work; he could work two hours or ten hours a day or not at all on any given day if he saw fit.All he had to do was to complete the work by a certain time according to the plans and specifications furnished by the manufacturer of the roofing material.The only restriction he was under as to the application of the material was that it should be applied according to those specifications.When he finished a piece of work he reported it to defendant with the number of squares.The defendant at once inspected or had inspected the work and if done according to the specifications it credited him on its books with the amount due him, which was $ 1.50 per square.He collected what was due him either when the work was completed or later as he saw fit.If there was another piece of work ready or him he went to work on it and if there was none ready he waited for another job.

In view of the above conditions, defendant contends that plaintiff was an independent contractor and not an employee of defendant.

It is pointed out that plaintiff was paid so much per square or piece for his work; that he furnished his own tools and implements; that he employed his own help, fixed their wages, paid them and discharged them at will; that he worked such hours as he saw fit, and did the work not under orders from defendant, but according to specifications furnished by Bird & Son, manufacturer of the roofing material; that defendant had no control over plaintiff; and that plaintiff was responsible to defendant only for the results, and that the means to attain the end were under plaintiff's control.

Defendant invokes the general rule, which is as follows:

"One who contracts to do a specific piece of work, furnishing his own assistance and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without being subject to the orders of the latter in respect of the details of the work, is clearly a contractor and not a servant."

In other words, a master is one who directs not only the end to be attained but also prescribes or reserves the right at any time to direct the means and methods of doing the work, and that the question whether one is a servant or employee on the one hand or an independent contractor on the other, turns on the point of control which is retained by the one having the work done.

In the case of Bell vs. Albert Hanson Lumber Co.,151 La. 824, 92 So. 350, Justice Provosty, as the organ of the court, said:

"The test applied in such cases usually is whether the power of superintendence and control has been retained by the employer; but that test while useful, as a general proposition, aids little in many cases towards the solution of the problem."

He then quotes from Ruling Case Law, volume 28, page 62, to the effect that all courts are agreed in respect to the expression of the general rule, yet the results reached in its application to particular cases are often very contradictory and that much latitude must be conceded to the varying facts and circumstances.He states that very often the decisions have been in direct conflict "in which situation the principle of stare decisis is of doubtful value".

In connection with and in addition to the above facts with reference to the employment of the plaintiff in this case, there are others which must be considered in determining whether plaintiff was an employee of defendant or simply an independent contractor.

Heine, the plaintiff, was an expert roofing engineer.He was engaged in this trade in the city of Alexandria and put on or applied roofing of any and all makes that the owner desired.It seems that he had considerable reputation as an expert and his services as a roofer were very much in demand.He had attracted the attention not only of the local people but the manufacturer of Bird & Sons' roof material, or its representatives, had heard of him and had become impressed with the idea that he would be a good man to apply its roofing.

When Bird & Son, Inc., gave the defendant the exclusive agency for its roofing material at Alexandria, it recommended plaintiff as the best man to apply it.Defendant at once sought his services.Plaintiff charged $ 1.50 per square to...