Irvan v. Bounds

• Decision Date: 03 May 1943
• Docket Number: 4-7036
• Citation: 170 S.W.2d 674,205 Ark. 752
• Parties: IRVAN v. BOUNDS
• Court: Arkansas Supreme Court

170 S.W.2d 674

205 Ark. 752

IRVAN v. BOUNDS

4-7036

Supreme Court of Arkansas

May 3, 1943

Appeal from Sevier Circuit Court; Minor W. Millwee, Judge; affirmed.

Judgment affirmed.

Ned A Stewart, for appellant.

Lee & Allen, for appellee.

OPINION

ROBINS, J.

Clyde Bounds was killed by a dynamite blast on December 16, 1941 while digging a well for appellant, Henry Irvan, at Irvan's sawmill in Sevier county. The Arkansas Workmen's Compensation Commission awarded compensation for his death at the rate of $ 7 per week for a period not to exceed four hundred and fifty weeks to his widow, appellee Lilly Louise Bounds, and his minor children, appellees Dorothy Lee Bounds and James Thomas Bounds. To reverse the judgment of the circuit court affirming the award this appeal is prosecuted by Irvan and Hartford Accident & Indemnity Company, his insurance carrier.

The evidence before the commission established that Rufus Rutledge and Clyde Bounds were employed by Irvan to complete the well, which had already been dug to a depth of fifteen feet by other workmen. While there was some contention before the commission and in the circuit court to the effect that only Rufus Rutledge was hired by Irvan and that Rufus Rutledge employed Bounds as his helper, the evidence justified a finding that Rutledge and Bounds both were employed by Irvan. In the oral argument here it was conceded that both men were employed by Irvan, and that they were to be paid for their work at the rate of $ 1 per foot, or at least 35 cents an hour.

For reversal of the judgment of the lower court it is urged by appellants that the relationship of employer and employee did not exist between Irvan and Bounds, but that Rutledge and Bounds were independent contractors, and, therefore, the widow and children of Bounds were not entitled to compensation, which, under the Workmen's Compensation Law, is available only for the benefit of employees and their dependents.

In 71 Corpus Juris, p. 449, it is said: "In determining whether a workman is an employee or an independent contractor, the act is to be given a liberal construction in his favor, and any doubt is to be resolved in favor of his status as an employee, rather than as an independent contractor; . . ."

The definition of "employee," as set forth in § 2 of the Arkansas Workmen's Compensation Law, is: "Any person, . . . including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied . . ."

The undisputed evidence in this case shows that, under the agreement by which Rutledge and Bounds were employed by Irvan, Irvan had the right to discharge Rutledge and Bounds, or either of them, at any time, and they had the right to quit the work at any time; and that Irvan furnished the tools with which the work was to be done and the dynamite used in connection with the digging of the well. Rutledge testified that Irvan, after it was found necessary to use dynamite, procured the dynamite and told him and Bounds where to get a crowbar and directed them to drill a hole in the center of the well and place the dynamite therein, and that while the work was going on Irvan came out and looked at it several times. This was not denied by Irvan.

The definition of "employee" under the Workmen's Compensation Law of Colorado is almost the same as that contained in the Arkansas Workmen's Compensation Law. In the case of Industrial Commission of Colorado v. Bonfils, 78 Colo. 306, 241 P. 735, it appeared that Sprigg was hired by the Continental Investment Company to haul coal in his own truck to customers of the company at a fixed price per ton. As stated in the opinion, "he was allowed to haul it himself or employ others; he was allowed to come and go as he pleased; need not report for work at any time nor at all unless he chose; could work for others if he desired. He called at the yard when he pleased, and was given coal to haul if there was any to be hauled when he called. The company was under no obligation to give him work, and he was under no obligation to work for the company; therefore he could quit when he chose, and the company could discharge him when it chose. This was service for hire. . . . By virtue of its power to discharge, the company could, at any moment, direct the minutest detail and method of the work. The fact, if a fact, that it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor. Franklin Coal & Coke Co. v. Ind. Com., 296 Ill. 329, 129 N.E. 811."

In the case of Frost v. Blue Ridge Timber Corporation, 158 Tenn. 18, 11 S.W.2d 860, the widow of John N. Frost sought compensation under the Workmen's Compensation Law for the death of her husband who was killed while hauling lumber for the corporation. Frost was employed to haul lumber and furnish his own team at so much per thousand feet, and the superintendent of the timber corporation testified "that he did not exercise any control over Frost as to the number of loads he carried, nor the quantity of lumber on each load, nor as to the number of days he worked." The corporation had the right to terminate the employment at any time with or without cause. The supreme court of Tennessee, holding that Frost was an employee and not an independent contractor, said: "In Odom v. Sanford & Treadway, 156 Tenn. 202, 299 S.W. 1045, supra, this court quoted with approval from Ruling Case Law (volume 14, p. 67): 'In this connection, the ultimate question is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control.' And again: 'The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show the subserviency of the employee. Indeed, it has been said that no single fact is more conclusive, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself.' 156 Tenn. 202, 299 S.W. 1045, quoting from 14 R. C. L., p. 72. The two circumstances mostly relied upon by the employer to place Frost in the status of an independent contractor are the fact that he was paid according to the amount of work done, and the fact that the employer's superintendent did not exercise control over the amount of work done. These circumstances are not conclusive, as is clearly indicated by the authorities cited, since they do not exclude the employer's right to control or to terminate the employment at will."

Chief Justice Green, of the supreme court of Tennessee, in the case of Marshall v. South Pittsburg Lumber & Coal Co., 164 Tenn. 267, 47 S.W.2d 553, reviewing an award made by the Workmen's Compensation Commission in favor of Marshall, a carpenter who had bought some lumber from the company and who had been in turn employed by the company to dress the lumber down to the desired dimensions, said, in response to the argument that Marshall was an independent contractor because the company did not have or exercise any control over the work: "In theory of law, we think there was no doubt of defendant's right to control plaintiff in the execution of this work. Defendant might have discharged plaintiff from this work, or ordered him to do the work...