Rodgers v. City of Hammond

• Decision Date: 15 February 1938
• Docket Number: 1814
• Citation: 178 So. 732
• Court: Court of Appeal of Louisiana — District of US
• Parties: RODGERS v. CITY OF HAMMOND

178 So. 732

RODGERS v. CITY OF HAMMOND

No. 1814

Court of Appeal of Louisiana, First Circuit.

February 15, 1938

Rownd & Tycer, of Hammond, for appellant.

Leon Ford, Jr., of Hammond, for appellee.

OPINION

OTT Judge.

Plaintiff sues the city of Hammond for compensation for a period of 400 weeks, based on 65 per cent. of his weekly wage of $ 35.70, plus $ 250 for medical expenses. His claim is for total permanent disability resulting from the loss of his arm from an accident while repairing and overhauling the electric motors and pumps of the sewage disposal plant of said city on May 13, 1937. While plaintiff claims the full amount of 65 per cent. of his said weekly wage, or $ 23.21, for the full 400 weeks, yet he has evidently overlooked the fact that in no event could he recover more than the maximum of $ 20 per week for said period, as fixed by law. Act No. 242, p. 357 §8, subd. 3.

The only issue raised in the case is whether or not plaintiff, at the time of the injury, was an employee of the city of Hammond, or was an independent contractor within the meaning of the law that excludes such an independent contractor from the provisions of the compensation law. Judgment went below in favor of the city, rejecting plaintiff's demands, and it is from this judgment that plaintiff has taken this appeal.

By trade and occupation, plaintiff is an electrician, and had been formerly local manager of the light plant at Kentwood. The city of Hammond had been in communication with Fairbanks, Morse Company with a view of having that company do the repair work on the motors and pumps of the city's disposal plant, but for some reason this company did not do the work. Plaintiff was recommended to the mayor as a competent man to do the work by one of the city's assistant engineers.

An agreement was entered into with plaintiff by the mayor of the city by which plaintiff was to do this repair work and was to be paid on the basis of 70 cents per hour. The plaintiff kept his own time and worked the number of hours per day that he chose, with the understanding, however, that his time was to be approved by the assistant city engineer, and, also, by an agreement with the assistant engineer, it was understood that ordinarily the hours of work were fixed at 8 hours per day. But we understand that this latter arrangement between plaintiff and the assistant city engineer was made merely as a matter of convenience to the city, as the city employed several laborers to assist plaintiff in the repair work, but these men were under the control and direction of plaintiff, and plaintiff himself could work just as many hours as he saw fit.

We do not think it was the understanding of any of the city officials, nor of the plaintiff himself for that matter, that he was a regular employee of the city, to be shifted from one job to another, as would ordinarily be the case of an electrician working for the city as a regular employee. On the contrary, we think the evidence shows clearly that plaintiff was employed to render service for the city on this one particular job, that of repairing and overhauling the equipment composing the sewage disposal plant. It is true that he had no written contract with the city, nor was there any time fixed in which he was to complete the job, nor was he to furnish any material, but these facts, while of some value in determining the nature of the employment, are not controlling, but are to be considered in connection with the more vital and determining factor, namely, that of the degree of control exercised by plaintiff over the method and manner in which the work was to be executed.

The evidence shows that, while the city officials could have discharged plaintiff and terminated his employment, yet the evidence also shows that this could not have been done without assigning a cause therefor, that is the unsatisfactory nature of plaintiff's work.

The foregoing circumstances are given to show the background and conditions existing when the relationship between the plaintiff and the city came into existence. After all, the principal and controlling factor, as already stated, is the degree of control exercised by plaintiff in the methods used to do the work. In our opinion, the preponderance of the evidence, if not that of the plaintiff himself, shows clearly that the means and methods of performing the particular work were left entirely to the judgment and discretion of the plaintiff. In fact, the reason that he was given the job was the fact that he possessed the necessary skill and knowledge to do this kind of work, which was a part of his occupation and business. The supervision that the assistant city engineer had over the work was restricted to the final results only. This is such a vital and important feature of the case that we feel justified in giving a few brief extracts from the testimony on this point.

Plaintiff testified:

"Q. Did you have control over these men that were working there? A. Yes, sir, over the work.

"Q. You were your own boss in how you did this work, were you not, as long as you turned out a satisfactory job? A. Whenever it was satisfactory to Mr. Randolph.

"Q. He was acting for the City of Hammond? or City Engineer? A. Yes, sir."

...