Norton v. Day Coal Co.
| Decision Date | 31 December 1920 |
| Docket Number | No. 33348.,33348. |
| Parties | NORTON v. DAY COAL CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; George Jepson, Judge.
Overruling the finding of the Industrial Commissioner, the trial court held that appellee was entitled to compensation under the act, because an employee of defendant. Defendant appeals. Reversed.
Weaver, C. J., dissenting.Sears, Snyder & Gleysteen, of Sioux City, for appellant.
T. P. Cleary, of Sioux City, for appellee.
[1] I. The statute not only fails to create a liability in favor of contractors, but declares that no contractor engaging to give services is an “employee.” And the terms “contractor” or “independent contractor” do, despite liberal interpretation of the act, retain their common-law meaning and are still to be given the meaning that courts have always given them. Storm v. Thompson, 185 Iowa, 309, 170 N. W. 403, 405;Pace v. County, 184 Iowa, 498, 168 N. W. 916; Code Supp. 1913, § 2477m16.
[2] II. The commissioner found against liability, on the ground that claimant was a contractor.
How far can court review in the district court, or here, of such findings, go?
Speaking through Mr. Justice Weaver, we said in Fischer v. Priebe, 178 Iowa, 512, 160 N. W. 48:
We need not go so far as this, and in Griffith v. Cole, 183 Iowa, at page 418, 165 N. W. 577, L. R. A. 1918F, 923, and in Pierce v. Bekins, 185 Iowa, 1346, 172 N. W. 191, we declined to do so. We held in Pace v. County, 184 Iowa, 498, 168 N. W. 916, that--
“Courts may not interfere with the findings of fact made by the Industrial Commissioner, when these are supported by evidence, even though it may be thought there be error.”
We said in the same case that his finding of fact on whether there was an employment is conclusive if the evidence be in conflict or be open to the drawing of different inferences. In Pierce v. Bekins, 185 Iowa, 1346, 172 N. W. 191, we declared:
“The effect of the Griffith Case [183 Iowa, 415, 165 N. W. 577, L. R. A. 1918F, 923] is that we cannot review a finding of fact unless the transcript makes it appear as matter of law that such finding is not sustained by or is contrary to the evidence”
--and say in that connection that “the court may not go into a general fact controversy.”
On application of these and of statute provision that we shall not have fact questions submitted to us, the sole question now is whether we may say that there was no conflict, no room for the drawing of different inferences, and that therefore, as matter of law, the finding of the commissioner is not sustained by the competent evidence.
III. One line of evidence is this: The plaintiff's general business was teaming, which he pursued with his own team. For the most of the year he hauled for the city and for materialmen, thus obtaining steadier work and better pay than defendant could give him. He hauled coal for defendant only when the demand for coal was so acute that there was more hauling than the regular employees of the defendant could handle. He admits he earned his livelihood by using his own team and working for different people with it. While he generally obtained coal hauling when he asked defendant for it, and though during some five weeks prior to his injury he did haul for defendant, he was at no time sure of obtaining it, knew at no time how much hauling he could get to do, or how long it would last. All hauling was paid for by the load, and settlement made weekly. He could apply for this work when he pleased and abandon it at any moment. He did the hauling with his own team. He was at liberty to decline any job of hauling for defendant and hauled coal for its competitors without subjecting himself to a refusal by defendant on later application to haul coal for it. It followsdefendant had no right to and did not exercise any control over when plaintiff should or should not work for it, and its only power was to refuse him work which, as it happens, was a power it never exercised. The engagement between the parties was that, if plaintiff applied for any hauling and defendant had some, plaintiff would be permitted to haul. If there was no hauling when he applied, he would be advised when a job did turn up, and be permitted to haul. When there was no more hauling available, defendant would advise plaintiff of that fact, whereupon he would depart. Defendant was not concerned in whether Norton loaded or unloaded the wagon himself or with help hired by him. If he encountered any difficulties, his was the task of overcoming them. If he needed help, it was for him to hire and pay for it; and he did hire help on more than one occasion. He was told where to get coal to load and to whom to deliver it. On delivery he was to obtain a receipt, and this would be the basis of settling how much was due him.
He was injured while engaged with his own team in delivering coal that he was hauling for defendant. While walking beside the wagon, it passed over his foot. He was alone and was handling his own team.
In effect, his so-called employment did not differ from employing a drayman, as to whom the cases stress the fact that they are not employees because, owing to the indefinite character and amount of their work, the right to discharge is never created. Tuttle v. Co., 192 Mich. 385, 158 N. W. 879, Ann. Cas. 1918C, 664. In effect, his status does not differ from the one of a passenger in a taxi. The general concensus of authority is that the taxi driver is not the employee of the passenger though the latter can direct him when to start, what route to travel, and as to where the passenger is to be discharged. See Ash v. Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973;Cram v. City, 185 Iowa, 1292, 172 N. W. 23;Stewart v. Co., 131 Cal. 125, 63 Pac. 177, 724, 52 L. R. A. 205;Frerker v. Nicholson, 41 Colo. 12, 92 Pac. 224, 13 L. R. A. (N. S.) 1122, 14 Ann. Cas. 730; and Pillsbury's Case, 172 Cal. 807, 159 Pac. 721. In Ash v. Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973, we held there was no “employment.” There, the driver teamed on the whole more for others than for defendant. He was engaged in an occupation other than serving defendant except at times when his independent business of teaming was less profitable than teaming for defendant during the rush season. And this was held though the driver was paid even when the foreman of defendant on occasion directed this driver to haul for others. We held in Storm v. Thompson, 185 Iowa, 309, 170 N. W. 403, that the claimant was engaged in an independent business which he styles “tree work” and he had supplied himself with the needed tools. In denying him the relationship of an employee and holding that he was a contractor, we said: Where there is no right to regulate the time for performance except in so far as the law implies a duty to complete within a reasonable period, there is no employment because there is control over nothing except such as is addressed to the general result. And see Perham v. Co., 193 Mich. 221, 159 N. W. 140.
[3][4] IV. Norton is not an employee within the act because there was no right to discharge him, and the right to discharge for misconduct or disobedience is an essential test. Pace v. County, 184 Iowa, 498, 168 N. W. 916;Ash v. Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973; Pillsbury's Case, 172 Cal. 807, 159 Pac. 721;Stewart v. Co., 131 Cal. 125, 63 Pac. 177, 724, 52 L. R. A. 205; Quarman v. Bennett, 6 M. &. W. 497; Tuttle v. Co., 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C, 664;Carleton v. Co., 199 Mich. 148, 165 N. W. 817;Pioneer Co. v. Hansen, 176 Ill. 100, 52 N. E. 17;Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017;Litts v. Co., 224 N. Y. 321, 120 N. E. 730. There was no right to discharge because, as said, claimant had virtually the status of a drayman. Plaintiff could not tell when he came whether he would get any work. He was not obliged to accept any that was offered. He was at all times at liberty to haul for others rather than defendant. The most that could be done was to refrain from giving him coal to deliver. The only power the defendant had was to elect whether he should be given work and how long it should continue. There was the right to interrupt or terminate the contract, but not to discharge. Pace v. County, 184 Iowa, 498, 168 N. W. 916. We said in Ash v. Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973:
“While the defendant at any time might have interrupted the employment of the man and team in hauling, it was without authority to discharge [him] as driver of [the owner's] team or to substitute another in his stead.”
Certainly, Norton was the owner of the team with which he did the hauling, and as certainly defendant could not substitute another to drive this team without the consent of Norton.
[5] V. One can so engage himself and his team to another as that the latter shall be in control of both. But he does not become a servant merely because he engages himself and his own team to work for another. To make the relationship the master must be in control of both man and team. Ash v. Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973;Pace v. County, 184 Iowa, 498, 168 N. W. 916;Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33;Huff v. Ford, 126 Mass. 24, 30 Am. Rep. 645;Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922.
Defendant was given no right whatever to control the management and care of the team. And it never attempted to exercise any control on that head. The care and management remained entirely with Norton.
[6] VI. The relationship of master and servant does not exist unless there be the right to exercise control over methods and detail--to direct how...
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