Shay v. Hill

• Decision Date: 09 May 1931
• Docket Number: 30,044
• Citation: 133 Kan. 157,299 P. 263
• Parties: EULA SHAY et al., Appellees, v. BURTON HILL, as THE TOPEKA RENDERING COMPANY, and EMPLOYERS CASUALTY COMPANY, Appellants
• Court: Kansas Supreme Court

299 P. 263

133 Kan. 157

EULA SHAY et al., Appellees, v. BURTON HILL, as THE TOPEKA RENDERING COMPANY, and EMPLOYERS CASUALTY COMPANY, Appellants

No. 30,044

Supreme Court of Kansas

May 9, 1931

Decided January, 1931.

Appeal from Shawnee district court, division No. 1; GEORGE A. KLINE judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Review of Evidence by Supreme Court. In a proceeding by dependents for compensation for death of a workman the district court considered the transcript of the evidence taken before the commissioner of compensation and decided that the workman was not an independent contractor, and his dependents were entitled to compensation. The employer appealed, and this court has before it the transcript of evidence which the district court considered. Held, this court may not review the evidence as the district court did, and determine the nature of the relation between the employer and the deceased. The function of this court is limited to determining if there was evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court.

2. SAME--Independent Contractor--Evidence. The proceedings considered, and held, there was evidence to sustain the judgment of the district court.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery and M. F. Cosgrove, all of Topeka, for the appellants.

Randal C. Harvey, of Topeka, for the appellees.

Burch J. Harvey, J., not sitting.

OPINION

BURCH, J.:

The proceeding was one by dependents for compensation for death of a workman. The commissioner of compensation denied compensation on the ground the deceased was an independent contractor. On appeal the district court held the deceased was not an independent contractor, and awarded compensation. The employer and the insurance carrier appeal.

Burton Hill collected bodies of dead animals throughout the territory lying within 100 miles of Topeka, and converted the carcasses into merchantable products at his factory in Topeka. Charley Shay went out after carcasses designated by Hill, and hauled them to the factory. Shay furnished his own autotruck, equipped and operated it at his own expense, and was paid a price per head for hauling large animals and a price per pound for hauling small ones. The general practice was to pay him weekly, but he could draw compensation whenever he desired. While returning to the factory with a truck load of dead animals, Shay was instantly killed when his truck collided with another truck at a highway intersection. Shay's dependents made a claim for compensation against Hill, with the result stated.

The single question in the district court was whether Shay was an independent contractor. That is not the question before this court. In compensation appeals this court has jurisdiction with respect to questions of law only. While this court has the same transcript before it the district court had, it is not the province of this court to determine whether the evidence, duly weighed and duly considered in the light of the legal definition of independent contractor, supports one conclusion better than another. The question here is: Was there evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court?

There is testimony in the record which the district court might have discounted. For example, numerous assertions of no control over truck drivers, doubtless intended to be quite probative, gave no information regarding the important matter of right to control, and assertions of liberty of truck drivers referred to conduct in fact subject to understood regulative customs to which they were expected to conform. There is testimony in the record which the trial court may have disregarded as conclusions designed to help Hill. For example, a witness testified that Shay's employment was like a certain class of work which is done by independent contractors. There was testimony which the district court may not have believed. For example, a truck driver not at the plant, who was the next man out, would be notified by telephone; a witness said the driver would be called to see if he had quit. There was testimony with respect to facts much emphasized--privilege of truck men to do other work, to decline a particular turn, and to report irregularly in the morning, which in view of the nature of the business and the necessary method of conducting it, meant little or nothing with respect to whether Shay was an employee or an independent contractor. In independent contractor cases, from Milligan v. Wedge, 12 A. & E. 737 (1840) to Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 P. 950 (December, 1930), whether there was exercise of an "independent employment"--that is, a distinct trade, business, or calling--has generally been considered important in determining character of relation. In their brief appellants interpret the evidence as showing Shay was exercising the distinct vocation of what might be called carcass carrier. There was no testimony that Shay so held himself out to the public, and the testimony was conclusive that Shay was one of a few persons who would consent to do Hill's hauling. Much is made of facts which the district court may have regarded as quite unimportant. There was testimony that sometimes a hauler would have somebody else drive his truck. The employment was not one requiring special skill and competence, such as a perfume manufacturer demands of his scent tester; and the fact that a laborer gets another laborer to do his work temporarily does not convert him into an independent contractor. These observations respecting the testimony are illustrative, and the result is, this court does not know what the district court regarded as established facts material to a decision of the controversy.

Turning to the law, it may be assumed the district court applied the "right of control" test recognized by courts generally and by this court. The American Law Institute's definition of independent contractor, and comment on the definition, follow:

"SEC. 6. An independent contractor is a person who undertakes to execute certain work or to accomplish a stipulated result for another, under such circumstances that the right of control of the doing of the work, and of the forces and agencies employed in doing it, is in the contractor.

"Comment: (a) The characteristics of the independent contractor are that he is a person (usually carrying on a distinct occupation) who for a stipulated compensation (usually a lump sum) undertakes to do a piece of work (usually of some magnitude) by his own forces and instrumentalities (usually supplying labor and materials), being responsible to his employer for the stipulated results, but (essential characteristic) being left in control of the operation of the forces and instrumentalities by which the stipulated result is to be accomplished." (Agency, American Law Institute Restatement, Part 1, ch. 1, § 6.)

The right of control test breaks down in some classes of employment, there are better tests for some classes of employment, and the test is such a blind guide that different courts continually reach different conclusions when professing to apply the test to substantially identical fact situations. (28 Mich. Law Rev. 365, February, 1930; 29 Mich. Law Rev. 519, February, 1931.) Therefore the test should not be mechanically applied when some freedom of action is found, as in this instance, in a department of an organized business.

Burton Hill testified as follows:

"I am engaged in operating the Topeka Rendering Works, and have been for the last twenty-two years, which business consists of removing dead stock and rendering same; have a factory for that purpose; Mr. Shay was hauling for me in September, 1929, as also were Gilbert Henry, Bob Barnes, and Spickard. . . . I oversee the work generally, and Mr. Hagan had charge of the office and of the men who did the hauling, . . . He had control of those whom I engaged to do hauling, and had that control in September, 1929. . . . Carcasses are hauled up to 100 miles, but seldom go that far. The busy season is the summer and fall. It varies from day to day and week to week, and some days there will be more hauling than others. . . . There are a comparatively small number of people who engage in hauling dead animals, and there are others who haul in to us besides the men who haul for us, and we have enough work to keep the three men pretty busy."

J. L. Hagan testified as follows:

"I am employed by the Topeka Rendering Works, operated by Burton Hill, and have been since November, 1928, having charge of the truck drivers, the books, and the office; was acquainted with Mr. Shay, who hauled for the company.

"Q. Was he one of the truck drivers whom you just said you had charge of? A. Yes.

. . . .

"Frazier's employment is as stenographer and telephone operator. . . . The business of hauling carcasses is seasonal, in the spring or after April 1, and through to the first of November, it is heavier than the rest of the time. For six months of the year it is practically double what it is the other six months .

"There are three men hauling for the firm now, and had four when Shay was there. . . . Around Topeka those who will haul dead animals are few and far between. . . . The business of the Topeka Rendering Company consists in receiving orders and notice of animals that die in the surrounding country, giving the orders out to the truck drivers, who bring the business in; about 30 per cent is converting dead animals into merchantable products, and 70 per...