Packett v. Moretown Creamery Co.

• Decision Date: 17 January 1917
• Citation: 99 A. 638,91 Vt. 97
• Parties: PACKETT v. MORETOWN CREAMERY CO. et al.
• Court: Vermont Supreme Court

99 A. 638

91 Vt. 97

PACKETT

v. MORETOWN CREAMERY CO. et al.

Supreme Court of Vermont. Chittenden.

Jan. 17, 1917.

Appeal from Industrial Accident Board.

Proceeding by Albert Packett, under the Workmen's Compensation Act, against W. C. Flynn, the Moretown Creamery Company, and the Travelers' Insurance Company. From an award and order of the Industrial Accident Board in favor of the servant against it, the Creamery Company appeals; the petition being dismissed as to W. C. Flynn. Order vacated, award set aside, and claim dismissed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Fred B. Thomas, of Montpelier, and Dunnett & Shields, of St. Johnsbury, for appellant.

TAYLOR, J. This is a proceeding under the Vermont Workmen's Compensation Act. No. 164, Acts 1915. From the facts certified by the Industrial Accident Board it appears that the Moretown Creamery Company is engaged in the creamery business in different parts of the state and employs on an average 20 men. W. C. Flynn was a contractor and builder at the time in question and ordinarily employed less than 10 men. A short time before the injury complained of the Creamery Company by its manager entered into a verbal contract with Flynn to erect for it a new creamery building. By the terms of the contract Flynn was to erect the building and was to be paid therefor a reasonable price by the Creamery Company. Flynn employed most of the help, including Packett, and paid them by checks drawn to his order by the manager of the Creamery Company. The checks were for the exact amount due each man, and were indorsed over by Flynn. While Packett was at work clapboarding the building the staging on which he was working gave way, and he fell to the ground, receiving the injury complained of.

The Creamery Company denied liability on the ground that Packett was in the employ of Flynn who, if any one, it says should be held liable to make compensation for the injury. The board found and so certifies that Packett was not working for the Creamery Company, but was employed by Flynn; and that Flynn's contract with the company was not a contract of hiring within the meaning of the act. It held that Packett was entitled to compensation from the Creamery Company and made an order fixing the compensation to be paid. The petition was dismissed as to Flynn and continued as to the Travelers' Insurance Company pending payment of the award by the Creamery Company. The Creamery Company brings its appeal to this court, which presents for review the questions of law certified up by the Industrial Accident Board. Acts 1915, No. 164, § 37.

The finding that Packett was not working for the Creamery Company, but was employed by Flynn, settles his status as a workman, so far as it was a question of fact. Dale v. Saunders Bros., 218 N. Y. 59, 112 N. E. 571. The Board held that sections 9 and 58 (a) of the act "impose upon the principals all obligations resting upon employers for compensation due to their employés." Section 9 provides:

"No contract, rule, regulation, or device whatsoever shall operate to relieve the employer in whole or in part from any liability created by this act."

Section 58 defines certain terms used in the act and at subdivision (a) reads:

"'Employer,' unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is insured it includes his insurer so far as applicable."

Under the Vermont Workmen's Compensation Act a necessary requisite to liability is the relation of employer and workman within the contemplation of the act. The holding of the Board amounts to a holding that the Creamery Company was Packett's employer as the term is used in the act. The question would not seem to be directly affected by section 9, which merely provides against evasion of liability by an employer. It turns on the construction to be given to the definition of an employer found in section 58 (a); but a proper interpretation of this section involves an examination of other provisions and a just appreciation of the spirit and purposes of the act. An instructive discussion of the scope and purposes of Workmen's Compensation Acts will be found in Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.

The act provides that it shall apply to all public and all industrial employment as defined in the act, but shall not apply to domestic servants or to employers who regularly employ not to exceed ten employés, unless such employer elects to come within the provisions of the act. Section 4. The term "employment" is defined, in the case of private employers, as including employment only in a trade or occupation which is carried on by the employer for the sake of pecuniary gain. Section 58 (e). The right to compensation is conferred upon workmen who receive personal injury by accident arising out of and in the course of such employment. Section 4. The term "workman" is defined as synonymous with "employé" and as meaning any person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer. It does not include a person whose employment is purely casual or not for the purpose of the employer's trade or business. Section 58 (b). The act compels an employer to secure compensation to his workmen either by workmen's compensation or guarantee insurance, or by a surety bond, unless excused therefrom by the board on a satisfactory showing of his financial responsibility. Section 45. In case of default in the matter of security, the employer may be enjoined from carrying on his business while the default continues. Section 48. The insurance carrier as well as the employer is made liable to pay the compensation awarded. Section 4. It is provided that every policy of insurance and every guarantee contract covering the employer's liability shall cover the entire liability of the employer to the employés secured by the policy or contract, and shall contain a provision enabling the employés to enforce the liability of the insurance carrier in their own names, either by filing a separate claim against the carrier or by making the carrier a party to the original claim. Section 49. It is required that every such policy and contract shall contain a provision that the insurance carrier shall be subject to and bound by the findings and awards of the Board against the employer for the payment of compensation under the provisions of the act. Section 50.

With this general view of the...