Kirk v. Yarmouth Lime Co.

• Decision Date: 10 September 1940
• Citation: 15 A.2d 184
• Parties: KIRK v. YARMOUTH LIME CO. et al.
• Court: Maine Supreme Court

15 A.2d 184

KIRK

v. YARMOUTH LIME CO. et al.

Supreme Judicial Court of Maine.

Sept. 10, 1940.

Appeal from Superior Court, Androscoggin County.

Proceeding under the Workmen's Compensation Act by Edna H. Kirk, alleged dependent widow of Charles M. Kirk, opposed by the Yarmouth Lime Company, employer, and the Travellers Insurance Company, insurance carrier. From a decree of a single justice of the superior court confirming decree of Industrial Accident Commission awarding compensation to the petitioner, the defendants appeal.

Appeal dismissed, and decree affirmed, with costs.

Argued before BARNES, C. J, and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Barnett I. Shur and Hyman Jacobson, both of Portland, for plaintiff.

William B. Mahoney and James R. Desmond, both of Portland, for defendants.

HUDSON, Justice.

Appeal by defendants from decree of a justice of the Superior Court confirming decree of Industrial Accident Commission awarding compensation to the petitioner.

There is no factual dispute. The issue raised, being one of law, is reviewable by this court. Murray's Case, 130 Me. 181, 184, 154 A. 352, 75 A.L.R. 720; Clark's Case, 124 Me. 47, 50, 126 A. 18.

In dealing with the Workmen's Compensation Act, its provisions must be liberally construed in favor of the workman and those dependent upon him. Murray's Case, supra, 130 Me. on page 184, 154 A. 352, 75 A.L.R. 720; Wardwell's Case, 121 Me. 216, 116 A. 447.

The petitioner is the dependent widow of Charles M. Kirk who died on November 10, 1938, at North Turner while operating a Chevrolet dump truck owned by him. It went off the road, collided with a tree, tipped over, and killed Mr. Kirk instantaneously.

His employer, the Yarmouth Lime Company, had contracted with the Agricultural Adjustment Administration for the reclamation and removal of waste lime and for its delivery in such quantities and to such farms in the counties of Androscoggin, Sagadahoc, Oxford, Cumberland and York as might be designated by the State Executive Officer of the Agricultural Adjustment Administration. Deliveries were a part of the company's regular business. It had no trucks of its own, but made arrangements with various owners, including Mr. Kirk, for the use of their trucks in making the deliveries. The truck drivers were not carried upon the payrolls of the company, but a record of payments to them was entered in a separate book.

The employment of Kirk was effected by his brother-in-law, one Davis. The company agreed to pay Kirk $1.50 a yard for each cubic yard of lime hauled, wherever its destination within said counties and regardless of the amount of mileage involved in the haul. He commenced work November 7th; he hauled four loads on the 7th, four on the 8th, three on the 9th, and on the 10th was returning from the delivery of his second load when the accident happened.

The size of the load and its destination in each instance were designated by the company. In loading, use was made of the defendant's shovel and conveyor. No control was exercised by it over the actual operation of the trucks on the highway or over the route selected, but upon request, the company would assist drivers in mapping out the shortest route. When taking their loads, the drivers receipted for them and were given receipts by the company to be signed by the persons to whom deliveries were to be made. The unloading was done by the drivers and in most instances they returned the signed receipts.

As to time Mr. Kirk's employment was indefinite. Any time he was subject to discharge and could quit at his pleasure. The drivers took their loads in turn and if there were no deliveries to be made on any day, they had no work from the company and it sustained no liability as a consequence thereof. Kirk did not agree to deliver any gross amount of lime.

The only question before us is whether Mr. Kirk at the time of the accident was an employee or an independent contractor. The Commission determined his status to be that of an employee.

Under the Workmen's Compensation Act, an employee is defined to be "every person in the service of another under any contract of hire, express or implied, oral or written," with certain exceptions not here applicable. Par. II, Sec. 2, Chap. 55, R.S. 1930, as amended. It is well settled in this State that an independent contractor is not an employee within the meaning of this act. Clark's Case, supra; Mitchell's Case, 121 Me. 455, 118 A. 287, 33 A.L.R. 1447.

As to what constitutes an independent contractor as distinguished from an employee has been before this court several times.

In McCarthy v. Second Parish of Portland, 71 Me. 318, on page 321, 36 Am.Rep. 320, decided before the enactment of the Workmen's Compensation Law, the court said: "True, the law makes a master responsible for the negligence of his servant, but the employment of one who carries on an independent business, and in doing his work does not act under the direction and control of his employer but determines for himself in what manner it shall be carried on, does not create the relation of master and servant, and this responsibility does not attach."

In Mitchell's Case, supra (a workmen's compensation case), the court, speaking of the question of whether one were an employee or an independent contractor, said on page 461 of 121 Me., on page 290 of 118 A., 33 A.L.R. 1447: "The determination of this question depends upon who had the right to direct and control the work of the claimant," and in applying the law to the facts in that case, added: "Was he a law unto himself, responsible only for results, or was he subject to the dictation of the superintendent of the quarry? Clearly the latter. He hauled the boiler from whatever place and to whatever place the master directed. He hauled the water in the same way. He obeyed orders. He was not working for himself, but for the quarry company, and he was paid, not by the job, but by the hour, like any other employee. Under the well-settled principles of law he could not be regarded as an independent contractor. McCarthy v. Second Parish, 71 Me. 318, 36 Am.Rep. 320; Keyes v. Baptist Church, 99 Me. 308, 59 A. 446."

In Clark's Case, supra, it is stated on page 50 of 124 Me, on page 19 of 126 A.:

"If the employer has authority to direct what shall be done, and when and how it shall be done, and to discharge him disobeying such authority and direction, and if the employer would be liable to third persons for misconduct of the worker, the other party to the relationship is an employee. * * *

"Whether payment is to be by the piece or the job or the hour or the day is indicative but not decisive. * * *

"What is controlling is whether the employer retained authority to direct and control the work, or had given it to the claimant."

In Murray's Case, supra [130 Me. 181, 154 A. 353], this Court quoted this language from Brown v. Smith, 86 Ga. 274, 12 S.E. 411, 22 Am.St.Rep. 456, 463: "One who contracts with another to do a specific piece of work for him * * * and who furnishes and has the absolute control of his assistants, and who executes the work entirely in accord with his own ideas, or with a plan previously furnished by the person for whom the work is done, without being subject to the latter's orders in respect to the details of the work, with absolute control thereof, is not a servant of his employer but is an independent contractor."

And from Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 158 N.W. 875, 878, 879, Ann.Cas. 1918C, 664, this: "The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an Independent contractor and a servant or agent."

On page 186 of 130 Me., on page 354 of 154 A., 75 A.L.R....