Litts v. Risley Lumber Co.

• Decision Date: 29 October 1918
• Citation: 120 N.E. 730,224 N.Y. 321
• Parties: LITTS et al. v. RISLEY LUMBER CO. et al.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 321

120 N.E. 730

LITTS et al.

v.RISLEY LUMBER CO. et al.

Court of Appeals of New York.

Oct. 29, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Act by May D. Litts and others, opposed by the Risley Lumber Company, employer, and others. An award by the State Industrial Commission was affirmed by the Appellate Division (170 N. Y. Supp. 1093), and the employer appeals. Reversed.

E. C. Sherwood, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Arken, of Albany, of counsel), for State Industrial Commission.

COLLIN, J.

The State Industrial Commission decided that Burt Litts died from injuries received as an employé of the Risley Lumber Company while in the course of his employment, under conditions making the Workmen's Compensation Law (Consol. Laws, c. 67), applicable. They, therefore, made an award of compensation to the claimants, which the Appellate Division affirmed by a decision not unanimous. The evidence, however, is not conflicting. We are to determine whether or not it tends to sustain the finding that Litts was, when injured, an employé of the company within the intendment of the act.

Three high smokestacks were a part of the industrial plant of the company at Rock Rift, N. Y. In the spring of 1917 Litts agreed with the company that he would paint the stacks for the sum of $50. Litts was to furnish the ropes, tackle, scaffolding, and implements. The company was to supply the paint and pay the wages of a man to help Litts. On August 21, 1917, the company wrote to Litts, who had not then painted the stacks, as follows:

‘Walton, N. Y., August 21, 1917.

‘Mr. Bert Litts, Readburn, N. Y.-Dear Sir: When do you expect to be able to paint the stacks that we talked to you about this spring? This ought to be done before the ovens and the boilers are fired up.

‘Yours truly.

H. C. McKenzie, Treas.'

On or about the 28th day of August, 1917, Litts appeared at the plant of the company with the articles furnished by him necessary for painting the stacks. He said to Bailey, the foreman of the company:

‘Bailey, I don't know who I can get. Can you furnish me a helper for a little while?’

Bailey sent to him McGraw, who was a day-laborer employed by and on the pay roll of the company. Litts said he would do. McGraw by means of a rope helped to pull Litts up aside the stacks and hold him when he wanted to stop. On the 31st day of August, Litts, because of the breaking of the rope, fell and was so injured that he died. On August 30th, Litts, being unable to work on the stack because of rain, told the foreman he was going home. The foreman gave him inside painting to do, which was kept account of separately from that of painting the stacks.

The act contains this definition:

“Employé' means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants.' Section 3, subd. 4.

This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employé and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employers and employés, and an independent contractor is not within its protection.

[1] In the instant case Litts was an independent contractor. He agreed to do a specific piece of work for the company. In doing it he had absolute control of himselfand his helper. He was independent as to when, within a reasonable time after the agreement was made between him and the company, and as to where he should commence the work. He was free to proceed in the execution of it entirely in accordance with his own ideas. He was not to any extent subject to the directions of the company in respect of the method, means, or procedure in the accomplishment. He was not subject to a discharge by the company because he did the painting in one way rather than in another. Those facts, considered by themselves, would constitute him an independent contractor.

[2] In the relation of employer and employé the employer has control and direction, not only of the work or performance and its result, but of its details and method, and may discharge the employé disobeying such control and direction. Uppington v. City of New York, 165 N. Y. 222, 232,59 N. E. 91,53 L. R. A. 550;Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755,54 Am. St. Rep. 703;McColligan v. Penna. R. R. Co., 214 Pa. 229,63 Atl. 729, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; Linnehan...