Null v. State Compensation Com'r

• Decision Date: 25 September 1945
• Docket Number: 9714.
• Citation: 35 S.E.2d 359,128 W.Va. 6
• Parties: NULL v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

35 S.E.2d 359

128 W.Va. 6

NULL v. STATE COMPENSATION COMMISSIONER et al.

No. 9714.

Supreme Court of Appeals of West Virginia.

September 25, 1945

Syllabus by the Court.

A person sustaining the relationship of an employee does not become, in the absence of relinquishment by employer of the right of supervision, an independent contractor by reason of a temporary change from one form of employment to another the latter of which is in furtherance of the general business of the employer and performed on his premises.

James G. Jeter, Jr., of Charleston, for appellant.

Frank Lyon, Jr. and Brown, Jackson & Knight, all of Charleston for appellee.

LOVINS President.

This appeal presents one question: Was claimant at the time of his injury an employee or an independent contractor? Frank Null, claimant, was employed as a coal loader by the Hatfield-Campbell Creek Coal Company for approximately 21 years prior to his injury. On or about September 2, 1943, he requested the mine foreman to transfer him from the night shift to the day shift. This request was denied for the reason that there was no vacancy on the day shift. He thereupon requested the mine foreman to give him authority to cut mine posts and ties for use in the coal company's mine, which request was granted by the mine foreman, although said foreman now disclaims authority to grant such request. The mine superintendent testified that he did not give claimant authority to engage in the work of cutting and manufacturing posts and ties. Nevertheless, claimant commenced cutting ties and posts on or about September 3 1943. The timber from which the posts and ties were manufactured was cut from land leased by the coal company and transported to the mine, where they were inspected and those not coming up to specifications were rejected and payment therefor was not made. Null furnished his own tools; employed his two sons to assist him; paid a motor truck operator to transport the posts and ties to the mine portal; and fixed his own working hours. There was no formal contract between Null and the coal company with reference to doing the work of cutting and manufacturing the posts and ties or the details thereof. Null testified that he knew the price paid by the company, as well as the length of the posts and ties, and admits that the coal company had no control as to whom he employed.

On September 24, 1943, while engaged in hewing a tie, claimant cut his left leg with an axe. He worked on the day following his injury, but thereafter he ceased work until March 4, 1944, when he resumed his former work as coal loader. Ties and posts were cut and manufactured and he was paid therefor while disabled.

Null was credited for posts and ties accepted by the coal company, and the amounts due him were entered on the payroll under the heading 'Other Credits'. His wages as a coal loader were entered on the payroll under the heading 'Earnings'. Social security and withholding taxes were deducted from his earnings as a coal loader, but no such deductions were made from the credits derived from cutting posts and ties. It is not disclosed whether the amounts paid Null for cutting posts and ties were reported as wages to the compensation commissioner for rate-making purposes.

On application of Null, he was awarded compensation benefits on a basis of temporary total disability. The coal company objected and after a hearing, Null was awarded compensation on the basis of temporary total disability for 22 and 6/7 weeks, and the coal company appealed. The Workmen's Compensation Appeal Board reversed the order of the commissioner, and held that Null was an independent contractor at the time he received his injury. From the last-mentioned order an appeal was prosecuted to this Court.

An independent contractor injured while performing his contract is not entitled to payment of benefits from the Workmen's Compensation Fund. Rawson v. Coal Co., 100 W.Va. 263, 130 S.E. 492, 43 A.L.R. 330. Some of the facts here presented indicate that Null was an independent contractor. Other facts tend to show that he was an employee. As indicating that he was an independent contractor, his credit for the work was calculated on the basis of the number of posts and ties accepted by the coal company, and the time...