Ratliff v. Redmon

• Decision Date: 19 November 1965
• Citation: 396 S.W.2d 320
• Parties: Rodney RATLIFF et al., Appellants, v. John Jesse REDMON, Appellee.
• Court: Kentucky Court of Appeals

396 S.W.2d 320

Rodney RATLIFF et al., Appellants, v. John Jesse REDMON, Appellee.

Court of Appeals of Kentucky.

November 19, 1965.

COPYRIGHT MATERIAL OMITTED

James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, Robert Matthews, Atty. Gen., Frankfort, for appellants.

HILL, Judge.

The Workmen's Compensation Board found appellee, John Jesse Redmon, was an independent contractor and disallowed his claim for compensation for the loss of sight in his right eye resulting from being struck by flying metal. The Circuit Court reversed the Board on the theory appellee was an employee and not an independent contractor. This appeal followed.

The only question presented by appellants concerns the relationship of appellee at the time of his injury. Was he an independent contractor or an employee?

This Court has not had the benefit of a brief on behalf of appellee; however, one copy of the brief filed with the Workmen's Compensation Board appears in the record. Rule 1.260 authorizes a reversal for failure to file brief, but we have decided to examine the merits of the case.

Appellants, Rodney Ratliff and William Ratliff, brothers and partners doing business as Frankfort Scrap Metal & Auto Parts, employed appellee, John Jesse Redmon, in 1960 primarily to separate copper and brass from other metals. Occasionally, appellee contends, he did other work, such as baling paper, hauling scrap iron, and some personal work for Rodney Ratliff constructing a fence around the home of the latter. When separating metals, he was paid five cents per pound. For the other work, which was not extensive, he was paid $1.25 per hour. Redmon was fifty-two years old when he gave testimony in April 1964. He could neither read nor write. Rodney Ratliff assumed the responsibility in the operation of the partnership and kept the books and records. He is a "college graduate in accounting" and has done "graduate work at the University in accounting and economics."

At the time of the injury to his right eye on October 24, 1963, appellee had vision of only 20/40 in the left eye.

Appellee testified "Rodney" showed and told him what to do; that he used "their" (appellants') tools; that "an old chopping ax and a hatchet" were all that was necessary; that he used "any old kind of tool that you could get by with." He testified that he worked about two or three days out of each week, when metal was available, and did not work for anyone else during the year previous to his injury. He admitted he was paid five cents per pound for copper and brass cleaned or separated. He also testified Rodney Ratliff told him he was covered by compensation.

Appellant, Rodney Ratliff, testified he employed Redmon primarily to clean copper and brass, although he admitted that on rare occasions Redmon did some other work for which he was paid separately. Rodney testified he paid Redmon five cents per pound for cleaning; that Redmon came and went when he pleased, used his own tools, although on cross-examination he admitted some of the tools used belonged to the firm; that he paid Redmon cash part of the time and by check at other times; that when he paid by check the checks were payable to "Redmon Metal Cleaning Service." Redmon stated that the first he knew of such a firm name was once when he went to Perkins' store to get a check cashed.

Ratliff also testified he did not advise Redmon that he, Redmon, was covered by compensation. He also stated he did not carry Redmon on the regular payroll; and that he had offered Redmon regular employment, which was refused; that Redmon was "strictly on his own;" that no one told Redmon "how hard, how slow, or anything about his work;" and that Redmon worked "whenever he took a notion."

Thus, it is apparent there is sharp conflict in the evidence on matters of detail concerning the nature of the relationship between appellants and appellee. However, details become relatively unimportant when the over-all picture is presented.

Before attempting to apply the rules of law applicable to the facts of the present case, we should keep in mind the well recognized rule of law in this jurisdiction, that in determining the relationship of employer and employee under the Workmen's Compensation Act a broader and more liberal construction is used favoring employee. See Brewer v. Millich, Ky., 276 S.W.2d 12, 15 (1955), wherein this Court said:

"In answering this question, the approach to be used is that of determining the relation of employer-employee under the Workmen's Compensation Act rather than of master and servant or principal and agent in tort actions. The workmen's compensation approach is broader and uses a more liberal construction favoring the employee. This is in harmony with the purpose of the Act in affording protection to the employee because of his inability to withstand the burdens of injury occasioned by his employment and the resultant loss of work."

The basis for this rule of law is found in KRS 342.004 wherein it is provided: "This chapter shall be liberally construed on questions of law, as distinguished from evidence, and the rule of law requiring strict construction of statutes in derogation of the common law shall not apply to this chapter."

The General Assembly of Kentucky further demonstrated its humane and compassionate consideration for the working class when it enacted KRS 342.050 prohibiting any contract, written or implied, or device calculated to relieve any employer of the obligation created by the Workmen's Compensation Act. We quote it in full:

"Except as provided in this chapter, no contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this chapter."

That the Act intended all employees to be covered is specifically provided in KRS 342.005 wherein it recites: "This chapter shall apply to all employers having three or more employes regularly engaged in the same occupation or business, and to their employes, * * *". (Emphasis added.)

This Court has consistently recognized and followed the general philosophy and purpose of the Workmen's Compensation Act as outlined by the Legislature. We quote further from Brewer v. Millich, supra, page 16:

"In Robinson v. Lytle, 276 Ky. 397, 124 S.W.2d 78, 80, the Court said: `* * * we must look to the philosophy of the Compensation Act in arriving at its proper construction. It was the intention of that Act to place the burden for injuries received upon the industries in which they were suffered rather than upon a society as a whole.'"

The problems resulting from work-connected injuries and deaths have burdened societies from the beginning of civilization. Many of the Roman road builders and early seafarers must have paid dearly for the tasks they performed. Their societies were burdened socially and financially with injured, useless citizens, dependent families, and lost production. With the advent of industrial development, our modern Workmen's Compensation Act has remedied the situation to a great extent so that now we may define workmen's compensation to be: a mechanism for providing cash wage benefits and medical care to victims of work connected injuries, and for placing the cost of these ultimately on the consumer, through the medium of insurance, whose premiums are passed on in the cost of the product.

Kentucky is not alone in legislative and judicial expression broadening the concepts of employee relationship and limiting the scope of "independent contractor" relationship, as will be seen in Larson's Workmen's Compensation Law, volume 1, page 623, from which we quote:

"The term `employee' is defined by most statutes to include every person in the service of another under any contract of hire, express or implied. Judicial application of this definition to workmen's compensation status problems generally follows the tests worked out by common law distinguishing servants from independent contractors for vicarious liability questions. However, a recognition of the difference between compensation law and vicarious liability in the purpose and function of the employment concept has been reflected both in statutory extensions of the term `employee' beyond the common-law concept and in a gradual broadening of the interpretation of the term to bring within compensation coverage borderline classes for whom compensation protection is appropriate and practical."

Going now to guidelines generally used to distinguish "employee" situations from "independent contractor" relationships, we quote further from Larson's Workmen's Compensation Law, page 624:

"In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job (h) whether or not the work is a part of the regular business of the employer; and

(i) whether or not the parties believe they are creating the relationship of master and servant."

We shall discuss the foregoing "matters of fact" or factors in the order listed as they apply to the relationship of the parties in the present case:

(a) Extent of control. Laying aside conclusions of the parties, we find appellee was at the time of his injury performing work that...