Henry v. Mondillo

• Decision Date: 05 June 1928
• Docket Number: No. 827.,827.
• Citation: 142 A. 230
• Parties: HENRY v. MONDILLO.
• Court: Rhode Island Supreme Court

142 A. 230

HENRY

v. MONDILLO.

No. 827.

Supreme Court of Rhode Island.

June 5, 1928.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Petition by James E. F. Henry, a physician, under the Workmen's Compensation Act, to recover for medical treatment of Christopher Flynn, employee, opposed by Christopher Mondillo, employer. From a decree dismissing the petition, petitioner appeals. Reversed and remanded.

Fergus J. McOsker, of Providence, for appellant.

Ralph T. Barnefield, of Providence, for appellee.

STEARNS, J. This is a petition, under the Workmen's Compensation Act (Gen. Laws 1923, §§ 1205-1294), by a physician to recover for the medical treatment of one Christopher Flynn, alleged to have been an employee of the respondent. January 26, 1927, Flynn was at work in a sewer catch-basin. While he was being drawn up by a rope to the surface of the street by one of respondent's workmen, in attempting to catch hold of a scaffold at the top, his hand slipped from the scaffold, he fell back and was injured. Respondent claims that Flynn was an independent contractor and not an employee. The cause was heard by a justice of the superior court, who decided that he was not an employee. The cause is here on petitioner's appeal from the final decree dismissing the petition.

The only question is whether Flynn was an employee within the meaning of that term in the Workmen's Compensation Act.

As there is no dispute of fact with respect to the provisions of the. contract of employment or the methods and means of doing the work, the question is one of law and the decision thereof is subject to review in this court.

Flynn was a bricklayer who worked usually on sewer work, although, as he stated, this was not a special branch of bricklaying. In 1926 the respondent, a sewer contractor, secured a contract from the city of Providence to lay sewers in certain streets. Respondent, by an oral agreement, engaged Flynn to build all of the required manholes and catch-basins for $15 each and the inlets for $3 each. Respondent was prohibited by his contract with the city from subletting any of the work without the written consent of the city. He had no authority to employ an independent contractor on this contract. Flynn furnished his own bricklaying tools, to wit, a hammer, trowel, and level. The city furnished materials for the sewers. The respondent notified Flynn when he was needed to work on any of the manholes and furnished four of his workmen as helpers. Flynn had no set hour for starting work in the morning; often he had to wait because it was too cold to do the work properly. He was not on respondent's pay roll, but respondent's foreman kept a separate account of his work and paid him every Saturday night for work finished that week. If a job was not finished properly, the foreman said he would tell Flynn that the city would not accept it and Flynn would have to do it over again and make it satisfactory. If he did not do this, the foreman said he would not discharge him, but that he would not let him do any more work. The reason for not discharging him if he did not do his work properly was apparently not for want of the right to do so, but from fear of trouble with the bricklayer's union. The foreman testified he had control over Flynn to a certain extent, but that he did not interfere with him at any time as Flynn knew his business.

Flynn testified that he did not agree to work as a subcontractor; that he did not need any instructions how to do the work, but he did get some instructions at times from respondent or his foreman; that he worked under their orders, but that t...