Purdy v. Livingston

• Decision Date: 19 December 1977
• Docket Number: No. 77-291,No. 2,77-291,2
• Citation: 262 Ark. 575,559 S.W.2d 24
• Parties: J. R. PURDY d/b/a Purdy's Flower Shop, Appellant, v. Y. M. LIVINGSTON, Appellee
• Court: Arkansas Supreme Court

Page 24

559 S.W.2d 24

262 Ark. 575

J. R. PURDY d/b/a Purdy's Flower Shop, Appellant, v. Y. M. LIVINGSTON, Appellee.

No. 77-291.

Supreme Court of Arkansas, Division No. 2.

Dec. 19, 1977.

Thaxton, Hout & Hartsfield, Newport, for appellant.

Laser, Sharp, Haley, Young & Boswell, Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal in a workmen's compensation case turns upon the question whether there was substantial evidence to support the commission's finding that appellee Livingston was an employee (but not a casual one) of appellant Purdy when he was injured in a fall from a ladder. We find that there was and affirm.

Livingston was employed by Village Mall, Inc. to keep a public or mall area clean. He was free to enter into arrangements with tenants of the corporation, such as appellant, to do work for them which did not interfere with his employment. He entered into an agreement with appellant to wash the windows of appellant's flower shop once a week and carry out the trash for $12 per week and performed these services over a 13-month period. We agree with appellant that the undisputed evidence shows that, as to this work, Livingston was an independent contractor but that is not determinative of the question before us. We have held that an employee may be an independent contractor as to certain work and a mere servant as to other work for the same employer. Brook's, Inc. v. Claywell, 215 Ark. 913, 224 S.W.2d 37; Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620.

Purdy did employ Livingston to do other work. Until the day Livingston was injured, this had been confined to cleaning the carpets in the flower shop. It was admitted that Livingston had done this on two or three occasions and that he had been paid for doing so. Livingston testified that Purdy furnished the equipment and supplies for shampooing the rugs and instructed him on the mixing of the cleaning ingredients. He said he was paid "by the hour" for this work. His recollection was that the rate was $2 per hour and that it took three to four hours to complete the job.

On the Saturday when Livingston was injured, he was on a ladder hanging wire for appellant. His services in doing this had been engaged by appellant's son, who was manager of the flower shop in the mall. The wire was being hung in the mall to support floral arrangements for a Sunday show being held jointly by the flower shop and the Newport Service League in the common area of the mall.

The wire was purchased by Livingston according to instructions given by appellant's shop manager at the place the latter directed and a charge ticket was made to appellant for the cost. Livingston testified that the ladder he was using had been borrowed from the Wal-Mart store, in compliance with directions of appellant's manager. He said he had never before borrowed any ladder. The manager specifically told Livingston how he wanted the wire hung and later came back to the place Livingston was working to show him how to space the wires. Livingston said that the manager told him exactly where to hang the wire and that he came out during the course of the work to see if Livingston was doing as he was told. There was no specific agreement as to the amount of compensation to be paid for this work, and probably none as to the manner of determining the payment to be made, although it is agreed that Livingston was to be paid for this specific job, which, according to Livingston, would require only one day and one night. Livingston said that he expected to be paid "by the hour" when the job was finished. The store manager did not recall whether he was to pay Livingston for the completed job or on a per hour basis. Although Livingston commenced the work at a time different from that specified by the shop manager, he went to this manager and obtained his approval before starting. The manager said that he had the right to tell Livingston to quit hanging the wire. Livingston was injured after he had worked only 11/2 hours. Livingston testified that, regardless of the time of day he did the work, he was instructed by Purdy to stay at the mall to turn the lights back on when they were turned off at 10:00 p. m. by an automatic timer.

The evidence was not undisputed and there is some inconsistency in the testimony of the interested witnesses at the two hearings held in this case. In stating it, we have viewed it in the light most favorable to the commission's findings, as we must. We must also draw all reasonable inferences in that light. Sneed v. Colson Corporation, 254 Ark. 1048, 497 S.W.2d 673.

Before we can reverse the commission, we must be convinced that fair-minded men could not have reached the conclusion they did. Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W.2d 242. It was the duty of the commission to resolve all reasonable doubts favorably to appellee. Sneed v. Colson Corp., supra. Even where the evidence would support a conclusion different from the commission's, or where the preponderance of the evidence would support a different result, we affirm the commission unless a reasonable mind could not reach its conclusion. Superior Improvement Co. v. Hignight, 254 Ark. 328, 493 S.W.2d 424.

We cannot say that there was no reasonable basis for the commission to conclude that appellee was an employee, not an independent contractor, at the time he was injured. The rule of liberal construction applies to the factual determination of the independent contractor-employee issue, and requires that doubts be resolved in favor of the employee status. Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W.2d 444. The primary test is whether the will of the worker or that of the employer dominates the means and method of the work, except as to result. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620. We there pointed out that there are numerous indicia of the relationship utilized as guides to the primary question of control, none of which is conclusive or controlling. Among those we have recognized are: the time for which the workman is employed; the right to terminate the employment without liability; the method of payment, whether by time, job, piece or other unit of measurement; furnishing, or the obligation to furnish, necessary tools and equipment and materials; and the exercise of some slight control of the manner of doing the work, where the nature of the work is such that little supervision is necessary. Parker Stave Co. v. Hines, supra; Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674.

We find substantial evidence that appellant had the right to terminate Livingston's employment before the job was finished, that, particularly in the light of the employment for carpet cleaning, the amount of compensation would have been calculated on a time basis, that the employer did furnish the materials and a ladder, both of which were essential to the undertaking, and that appellant did exercise some degree of control of the manner of doing the work. These indicia were sufficient to afford the commission a basis for a conclusion that an employer-employee relationship existed and we are unable to say that a fair-minded person could not reach that conclusion.

This brings us to appellant's argument that appellee was a casual employee under Ark.Stat.Ann. § 81-1302(b) (Repl.1976). The section excludes from the status of "employee," as defined in the act, one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer. We have held that an employee is not excluded from the coverage of the act unless both exceptions exist. Meek v. Brooks, 237 Ark. 717, 375 S.W.2d 671. Assuming, without deciding, that the employment of Livingston was casual, we find substantial evidence to sustain the commission's finding that the work being performed at the time of the injury was in the course of appellant's business and was a form of advertisement which either did, or reasonably could be expected to, benefit appellant.

The line of demarcation between what it is and what is not employment in the course of...