McDowell v. Duer
| Decision Date | 26 January 1922 |
| Docket Number | 11,140 |
| Parties | MCDOWELL ET AL. v. DUER |
| Court | Indiana Appellate Court |
Rehearing denied June 22, 1922.
From the Industrial Board of Indiana.
Proceedings for compensation under the Workmen's Compensation Act by Almeda Duer against Frank McDowell and others, doing business in the firm name of the Bluffton Hoop Company. From an award for applicant, the defendants appeal.
Affirmed.
Joseph W. Hutchinson, Everett W. Trook and Elmer E. Stevenson, for appellants.
Dore B Erwin, for appellee.
OPINION
The appellants are partners doing business in the firm name of Bluffton Hoop Company. One Charles Duer, while cutting timber for appellants, was injured by a falling tree, and died from the effects thereof a few days later; and this appeal is from an award of compensation to the appellee as his widow.
The undisputed facts, bearing on the controversy, are as follows:
The hoop company had a manufacturing plant at Decatur, Indiana. It had in its employ one Franks, whose business was to buy timber for the company and to employ men to cut and haul it. In February, 1920, Franks purchased some timber for the company in the community where Duer resided. Franks asked Duer if he could cut the timber, and Duer said he could. They agreed on the price to be paid for the cutting, viz.: $ 2.50 per thousand. The quantity of timber was about 10,000 feet. Franks gave Duer specifications, measurements and dimensions, and told him the length in which he wanted the timber cut. Duer's regular business was farming and also contracting for the construction of ditches and cement work. Duer furnished his own tools for cutting timber, and he engaged his son to help him do that work. Franks had control over the work, as to how the timber should be cut, and authority to see that it was cut according to specifications. The company reported the accident to the Industrial Board before Duer died; and also made a report to the insurance carrier. The company, in its report to the Industrial Board, consistently and throughout the document referred to Duer as its employe. The company bought timber at various places. It usually had two regular cutters at each place. The company's plan was to have a regular set of cutters; but sometimes it would cut timber in localities where it was hard for its men to go; and in such cases, or in case of a small job, it would pick up some one locally. At times when the factory was shut down, the company would take men from the mill to the woods and have them cut. The company did not have any distinct understanding with any of its cutters that they were to do a certain amount of work or to do it in a certain way--only as to specifications, and not as to time.
The ultimate question to be determined is whether the Industrial Board was justified in finding that Duer was an employe. The appellant's contention is that Duer was not an employe, but that in truth he was an "independent contractor." In view of the evidence, it is certain that Duer was neither a trespasser nor a mere volunteer, and that he must have been either an employe or a contractor. It clearly appears from the Workmen's Compensation Act that the legislature has recognized the distinction between an employe and a contractor. § 14 as amended, Acts 1919 p. 158, § 8020x Burns' Supp. 1921. The concepts denoted by the words "employe" and "contractor" are, therefore, so related that we will consider the contention in its dual aspect.
In order that we may intelligently pursue our inquiry we must have an accurate conception of the significance or import of the terms "employe" and "contractor."
The legislative definition of "employe" is "any person * * * in the service of another under contract of hire or apprenticeship, written [express] or implied."
The co-ordinate legislative definition of "employer" is "any individual, firm, association or corporation * * * using the services of another for pay." Acts 1919 p. 158, § 76, § 8020h3 Burns' Supp. 1921.
In the definition of "employe" the words "in the service of another" are the equivalent of "working for another"; and in the definition of "employer" the word "service" is the equivalent of "labor."
The general meaning of the word "contractor" is shown by the following definition:
"One who contracts; one of the parties to a bargain; one who covenants to do something for another." Webster's Dictionary; Century Dictionary.
The specific meaning of the word "contractor" differs materially from its general meaning, as shown by the following definitions:
"Specifically, one who contracts to perform work on a rather large scale, at a certain price or rate, as in building houses or making a railroad." Webster's Dictionary.
"Specifically, one who contracts or covenants either with a government or other public body or with private parties, to furnish supplies, or to construct works or erect buildings, or to perform any work or service, at a certain price or rate: as, a paving-contractor; a labor-contractor." Century Dictionary.
The word "contractor" is sometimes used to denote a permanent occupation or business, as evidenced by the following:
"The term 'contractor' is applicable to all persons following a regular independent employment, in the course of which they offer their services to the public to accept orders and execute commissions for all who may employ them in a certain line of duty, using their own means for the purpose and being accountable only for final performance." Cooley, Torts 1098. See Shearman & Redfield, Negligence § 164.
The doctrine of "independent contractor" is peculiar to the law of negligence; and we are not aware that it is appropriate to any other branch of the law. Certainly it has no proper place in the law of workmen's compensation. We will eliminate that term, therefore, from further consideration.
The relation of employer and employe is contractual. It is created in every instance by a contract, express or implied. Rogers v. Rogers (1919), 70 Ind.App. 659, 122 N.E. 778; Nissen Transfer, etc., Co. v. Miller (1920), 72 Ind.App. 261, 125 N.E. 652. There is an apparent exception to that statement. To illustrate: Where A hires out his teams, wagons and drivers to B, to do hauling or other work for B, and while doing the work B has the right to control the working place and the drivers, it is commonly said in negligence cases that the drivers are the servants of B while so engaged in his work. But in such cases the relation of master and servant is constructive, not real. It is a fiction resorted to by the courts to enable them with greater ease and facility to apply the law of negligence--especially the rule of respondeat superior. In truth the relation of employer and employe continues to exist between A and the team drivers; and under the Workmen's Compensation Act a team driver, receiving an injury by accident while doing B's work, must look to A alone for compensation. The fiction utilized in the law of negligence has no place in the administration of the Workmen's Compensation Act. Rogers v. Rogers, supra; Rongo v. R. Waddington & Sons (1915), 87 N.J.L. 395, 94 A. 408; Kirkpatrick v. Industrial Acc. Comm. (1916), 31 Cal.App. 668, 161 P. 274.
Having in mind the foregoing definitions, how was the Industrial Board to determine whether Duer was an employe or a contractor? The proposition must be regarded as settled that whether Duer was an employe of the hoop company at the time he received the fatal injury, was a question of fact for the Industrial Board, to be determined from the evidence. Columbia School Supply Co. v. Lewis (1916), 63 Ind.App. 380, 115 N.E. 103, Id. (1917), 65 Ind.App. 339, 116 N.E. 1; Zeitlow v. Smock (1917), 65 Ind.App. 643, 117 N.E. 665; Sugar Valley Coal Co. v. Drake (1917), 66 Ind.App. 152, 117 N.E. 937; Mobley v. J. S. Rogers Co. (1918), 68 Ind.App. 308, 119 N.E. 477; Muncie Foundry, etc., Co. v. Thompson (1919), 70 Ind.App. 157, 123 N.E. 196; Nissen Transfer, etc., Co. v. Miller, supra; Coppes Bros., etc. v. Pontius (1921), 76 Ind.App. 298, 131 N.E. 845.
Since whatever relation existed between the company and Duer was created by their contract, naturally we must look to the contract itself, as disclosed by the evidence, to find that relation. They made an express contract. Now, what do we know about that contract? Merely this: that it was a contract whereby Duer agreed to fell trees and to cut them into logs and whereby the hoop company agreed to pay him therefor at the rate of $ 2.50 per thousand. That is all the Industrial Board knew about their contract, and all we know about it. The timber on which Duer was bestowing his labor was the property of the hoop company; and, for aught that appears from the evidence, it had complete dominion over its own property. All that Duer agreed to give to the hoop company, as the consideration for his pay, was his services; and all that the hoop company expected to receive or could receive from him, as the thing for which it agreed to pay, was his services. The evidence, then, tends...
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