Myers v. Workmen's Compensation Com'r

• Citation: 150 W.Va. 563,148 S.E.2d 664
• Decision Date: 07 June 1966
• Docket Number: No. 12557,12557
• Parties: Herbert E. MYERS v. WORKMEN'S COMPENSATION COMMISSIONER, and Lippert Plumbing and Heating Co.
• Court: Supreme Court of West Virginia

Page 664

148 S.E.2d 664

150 W.Va. 563

Herbert E. MYERS v. WORKMEN'S COMPENSATION COMMISSIONER, and Lippert Plumbing and Heating Co.

No. 12557.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1966.

Decided June 7, 1966.

Syllabus by the Court

1. To ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together.

2. In determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done.

3. 'If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done.' Point 2, Syllabus, Spencer v. Travelers Insurance Company, 148 W.Va. 111 (133 S.E.2d 735).

4. In determining whether one is an employee or an independent contractor within the meaning of the workmen's compensation act, the act must be given a liberal construction in favor of the workman and any doubt is to be resolved in favor of his status as an employee, rather than an independent contractor.

R. L. Theibert, Charleston, for appellant.

D. Boone Dawson, Charleston, for appellees.

CAPLAN, President:

This is an appeal by the claimant, Herbert E. Myers, from an order of the Workmen's Compensation Appeal Board entered on January 12, 1966, which affirmed an order of the Workmen's Compensation Commissioner. That order, dated August 25, 1965, denied the claimant's application for benefits on the ground that the claimant was not an employee within the meaning of Code, 1931, 23--2--1, as amended.

In May, 1964, appellee Lippert Plumbing and Heating Company, hereinafter referred to as Lippert, was engaged as a subcontractor for the installation of certain plumbing on a construction project in Point Pleasant, West Virginia. In the performance of that contract it became necessary to make an excavation in which to lay a pipeline. Lippert, being primarily a plumbing company, did not maintain equipment nor did it retain employees to do this type of work. Consequently, John Groah, Lippert's superintendent, contacted the claimant who ordinarily performed this type of work and inquired if he would be interested in accepting this employment. Upon receiving an affirmative reply Mr. Groah later instructed Raymond Ray, an employee of Lippert, to contact the claimant and arrange for him to begin work on May 12, 1964. The claimant reported on the job on that day, bringing with him his own backhoe machine with which he would do this work. The superintendent and Mr. Ray had outlined with lime the line along which the excavation was to be made. Pursuant to the instruction of Mr. Groah, Mr. Ray, who was described as a laborer, was to work with the claimant, his duty being to determine that a proper grade was being maintained in order that the pipeline might be correctly placed. It was understood that the claimant was to follow Mr. Ray's instructions, particularly as to the grade of the excavation. While the superintendent did not remain on this particular job with the claimant, it is undisputed that he made an inspection at least once every hour to see that the job was being done in a proper manner.

When the claimant was retained to do this work he was under the impression that it would take approximately eight hours, but no definite time was stated in which the job must be done. For this work, which included his services and the use of his backhoe machine, he was to be paid ten dollars per hour. There was no contract in writing, the claimant being hired, as heretofore indicated, on an hourly basis.

The claimant worked for approximately two and one-half hours on May 12, 1964, and for an hour and three-quarters on May 13, when he received the injury for which he now seeks compensation. Mr. Myers was taken to the hospital and was unable to personally complete the job. The next day his wife obtained another machine operator who, with claimant's machine, completed the excavation required by Lippert. The second operator was paid for his services by the claimant.

It is the position of the claimant that he was an employee of Lippert Plumbing and Heating Company and was therefore entitled to compensation for the injuries received while in such employment. He claims that his work was completely controlled by Lippert, through its superintendent and Mr. Ray, as evidenced by the fact that the superintendent and Mr. Ray told him where the excavation was to be made and continuously guided and controlled his activities. He says that he was told when and how to perform his duties. The claimant testified that when he came on the job it was raining and he did not want to proceed with this work but was told that he must.

It is the contention of the appellee that the claimant was not an employee of the company, but rather was an independent contractor. Mr. Groah testified that he had nothing to do with the work other than to lay out the lines to be followed, although he admitted that he made inspections at least once every hour. Mr. Ray stated in his testimony that he did not control the claimant's work but directed it only as to the grade. He further disputed the claimant, saying that he did not require him to work in the rain. He agreed that Mr. Groah made an inspection of the work at least once an hour.

The sole question to be resolved is whether the claimant, in performing this work, was an employee of Lippert or an independent contractor within the meaning of the workmen's compensation act.

In making this determination no general rule can be laid down which covers all situations. Each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together. Rawson v. Jones-Winifrede Coal Company, 100 W.Va. 263, 130 S.E. 492, 43 A.L.R. 330; Pettis v. Harken, Inc., 263 Minn. 289, 116 N.W.2d 565. Thus, it becomes necessary to consider the entire circumstances of the relationship between the claimant and Lippert and to evaluate the factors which determine what that relationship constitutes.

As herein noted, Lippert hired the claimant to perform certain services for it. It is ordinarily considered when one person is retained to render a service for another that the relationship of employer and employee exists. Null v. State Compensation Commissioner et al., 128 W.Va. 6, 35 S.E.2d 359; Crowder v. State Compensation Commissioner et al., 115 W.Va. 12, 174 S.E. 480. To overcome this presumption it is incumbent upon the one who hired the workman to show that the latter is an independent contractor. Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806.

The controlling factor in determining the status of a workman is whether the hiring party retains the right to control and supervise the work to be done. Whether the control is actually exercised is unimportant. The right to exercise control and supervision is the determinative element. Spencer v. Travelers Insurance Company, 148 W.Va. 111, 133 S.E.2d 735; Davis v. Fire Creek Fuel Company et al., 144 W.Va. 537, 109 S.E.2d 144. This principle is well stated in the syllabus of Greaser v. Appaline Oil Company, 109 W.Va. 396, 155 S.E. 170, as follows: 'The test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that employer and independent contractor.' In Null v. State Compensation Commissioner et al., ...