Simon J. Kelley's Dependents v. Hoosac Lumber Company And Employers' Liability Assurance Corporation

• Decision Date: 03 May 1921
• Parties: SIMON J. KELLEY'S DEPENDENTS v. HOOSAC LUMBER COMPANY AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION
• Court: Vermont Supreme Court

113 A. 818

95 Vt. 50

SIMON J. KELLEY'S DEPENDENTS v. HOOSAC LUMBER COMPANY AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION

Supreme Court of Vermont

May 3, 1921

February Term, 1921.

APPEAL from an award of the Commissioner of Industries, Bennington County, ordering the defendants to pay the claimant a specified sum on account of the death of Simon J. Kelley, her husband, who was accidentally killed while cutting logs for the Hoosac Lumber Company. The opinion states the case.

The award is affirmed with costs. Let the result be certified to the Commissioner of Industries.

Harvey Maurice, Whitney & Fitts for the defendants.

Holden & Healy for the claimant.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH Supr. J.

OPINION

POWERS

This is an appeal from the award of the Commissioner of Industries ordering the defendants to pay the claimant a specified sum on account of the death of Simon J. Kelley, her husband, who was accidently killed on February 22, 1919, while cutting logs for the Hoosac Lumber Company, hereinafter spoken of as the defendant.

The first question involved is whether the decedent's relation to the defendant at the time of the accident was such as to entitle his dependents to the benefits of the Workmen's Compensation Act (G. L. Chap. 241).

It is not always an easy matter to draw the line of distinction between those who, under the Compensation Acts, are to be classed as employees and those who are to be classed as independent contractors. The attempt to do so has involved the courts in much perplexity and some inconsistency--as will appear from a study of Messmer v. Bell, etc., Co., 133 Ky. 19, 117 S.W. 346, 19 Ann. Cas. 1, and note. Our own act attempts to simplify this matter by defining the words "workman" and "employee" as a person who has entered the employment of or works under a contract of service with an employer. G. L. 5758, II. The scope of this language, broad as it is, is not all-inclusive, and independent contractors are not within it. But the definition affords little aid in a close case. The truth is that the ultimate test depends upon divers considerations of varying importance, all of which must be considered, and no one of which is determinative; and it is extremely difficult, if not impossible, to make a statement of definite facts by which the status of a given person can unfailingly be determined.

The value of precedents is somewhat uncertain. A slight difference in the wording of the statutes or some small variation in the circumstances may impair the value of an outside decision when attempt is made to apply it here.

It was said in Rheinwald v. Builders' Brick, etc., Co., 168 A.D. 425, 153 N.Y.S. 598, that common-law decisions involving the liability of a master for injuries received by his servant are not controlling in cases under Compensation Acts, nor as valuable therein as cases under the acts themselves. But this idea was repudiated in Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721, and we think rightly so; for we are satisfied that the learning of the common-law decisions affords the safest guide to a proper interpretation of such statutes. Accordingly, we look to our own cases for the rule to direct us to a correct decision of the question in hand. We find it in Bailey v. Troy & Boston R. Co., 57 Vt. 252, 52 A. R. 129, and Richards v. Consolidated Lighting Co., 90 Vt. 552, 99 A. 241. It is this: If under the contract the party for whom the work is being done may prescribe not only what the result shall be, but also may direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employee. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor. So the master test is the right to control the work. And it is this right which properly differentiates service from independent employment. It is to be observed that actual interference with the work is unnecessary--it is the right to interfere that determines. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 158 N.W. 875; Knicely v. West Virginia Midland R. Co., 64 W.Va. 278, 61 S.E. 811, 17 L.R.A. (N.S.) 370; Franklin Coal & Coke Co. v. Industrial Co. (Ill.) 129 N.E. 811.

The ordinary rules of procedure, except so far as modified by the act, apply to these proceedings. At the outset, the burden of proof was on the claimant to establish such facts as were essential to a recovery (Gorral v. William Hamlyn & Son, 38 R.I. 249, 94 A. 877; Carberry v. Delaware, etc., R. Co., 93 N.J.L. 414, 108 A. 364; In re Sanderson's Case, 224 Mass. 558, 113 N.E. 355), including, of course, the necessary relation between Kelley and the defendant. Dutton v. Amesbury National Bank, 181 Mass. 154, 63 N.E. 405; Aisenberg v. Adams & Co., 95 Conn. 419, 111 A. 591; Scoggins v. Atlantic, etc., Co., 179 Ala. 213, 60 So. 175; Zeitlow v. Smock, 65 Ind.App. 643, 117 N.E. 665. But when it was made to appear that Kelley was at the time performing work on the defendant's premises, and for the defendant's benefit, a prima facie case of ordinary service was made out, and when the defendant sought to avoid liability on the ground that he was an independent contractor, it assumed the burden of evidence on that point. See 19 Ann. Cas. at page 6.

With these rules in mind, we turn to the record before us, and find that Kelley entered the employ of the defendant on December 6, 1918. For ten days thereafter he worked as a teamster at a wage that amounted to four dollars per day. Holland Rutledge was the defendant's superintendent at this time, and he was the man who made the contract with Kelley. The defendant was anxious to secure as large a stock of logs as possible during the season, and to that end made to its employees three propositions to cut logs by the thousand, one of which was that the defendant would pay twelve dollars per thousand feet for cutting and delivering logs at the mills. Kelley and a man named Beers accepted this offer, and went to work together under it, and while so engaged Kelley was killed by a falling tree. Under this arrangement he paid the defendant a dollar a day for his board, and he and Beers hired its teams to draw the logs at the rate of eight dollars per day for each team and its driver. The tools used in this work were furnished without charge by the defendant. The foreman of the defendant blazed out the roads for Kelley and Beers, and, when they had cut the logs on one road, they would report to the foreman, and he would blaze out another for them to work by. They were subject to the foreman's directions as to where they should come and go, and cut, "and so on," the commissioner says, but the defendant had no right to call Kelley away from this to some other work. The defendant specified the lengths the logs were to be cut, gave directions as to the size down to which trees were to be taken, as to where the tops were to be left, and to the unloading at the mills. Kelley worked at other things for the defendant in all six days, while cutting by the thousand, but this was at times when for one or another reason he could not work in the woods. He and Beers were bound to deliver at the mills all logs cut by them. They, and the others working by the thousand, were carried on the defendant's books with the per diem men, but the pay roll sheets on which their names appeared were headed "Jobbers. " Rutledge testified that the defendant had the right to put these "jobbers" at other work, and Beers testified that if Rutledge had directed Kelley to work with some one else, or somewhere else, he would have had to obey or quit, and that Rutledge told them that they could not hire in men to help them. Their contract ran for no particular time, but could be terminated at any time, and it did not cover a specified tract or quantity. Upon these facts the commissioner concluded that Kelley was an employee.

So far as the commissioner's findings of fact are concerned they are binding upon us (Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638, L.R.A. 1918F, 173), provided they are legally supported by evidence. They stand like the findings of a referee or master in that regard. If a party desires a retrial on the facts, his appeal should be taken to the county court. G. L. 5807. This Court is intrusted only with power to review questions of law. G. L. 5808. On the record, we cannot say as matter of law that the findings of the commissioner are not fairly and reasonably supported by the evidence or that his conclusion thereon was wrong. The most that w...