Wren v. D. F. Jones Construction Company

• Citation: 194 S.W.2d 896,210 Ark. 40
• Decision Date: 29 April 1946
• Docket Number: 4-7884
• Parties: Wren v. D. F. Jones Construction Company
• Court: Arkansas Supreme Court

194 S.W.2d 896

210 Ark. 40

Wren v. D. F. Jones Construction Company

No. 4-7884

Supreme Court of Arkansas

April 29, 1946

Rehearing Denied June 24, 1946.

Appeal from Columbia Circuit Court; Gus W. Jones, Judge.

Affirmed.

Ward Martin, for appellant.

Buzbee Harrison & Wright, for appellee.

McFaddin J. Robins, J., dissenting.

OPINION

McFaddin, J.

This appeal involves a claim filed under the Workmen's Compensation Law, which is Act No. 319 of 1939. The appellant is the widow of Doss Wren, and she seeks to recover compensation from appellee for the death of her husband. There are two questions presented on this appeal; and the facts will appear as we discuss these questions.

I. Did Appellee, by its Failure to Promptly File Notice of Intention to Controvert the Claim, Thereby Lose its right to Make the Defense of Independent Contractor? Doss Wren was engaged in hauling gravel for appellee, and was instantly killed while driving a truck in Columbia county, Arkansas, on July 16, 1942. On July 21st, D. F. Jones Construction Co. filed the first report with the Workmen's Compensation Commission. Shortly thereafter the Commission received notice from an attorney (not now in the case), advising the Commission of the claim of the appellant. Then ensued a series of unexplained delays. The Commission set the hearing for October 15th, but instead of a hearing, Mrs. Wren advised the Commission, by letter of that date, that her present attorney was the only one authorized to represent her. The hearing was reset for November 13th; and then reset for December 3rd; and there was a still further delay. Finally, on March 12, 1943, notice of hearing was given for March 25, 1943; and on that notice the subject of the hearing was listed as "Dependency."

At the beginning of the hearing before the referee on the date last mentioned, appellant filed "Motion for Allowance of Compensation," which recited that Doss Wren was killed on July 16, 1942, and that notice of claim was given on July 21st in accordance with § 17 of the Workmen's Compensation Law; and "More than fourteen days have elapsed since the filing of such notice, and, under the provisions of such act (§ 19-d), respondents are precluded from controverting claimant's right to compensation. Respondents also failed to file form 9-A as required by the Commission." On the argument of this motion, appellee's attorney informed the referee, and it is in the record:

"The respondents state that on November 2, 1942, a letter was written to the Commission with a copy to Mr. Ward Martin, receipt of which he has acknowledged to me on many occasions, in which he was apprised of the nature of the defense. Since that time I, as attorney for the respondents, have talked with Mr. Martin not less than half a dozen times. He is fully acquainted with the defense of independent contractor. . . . At his request, on January 26, 1943, I met with him before the members of the Commission at Little Rock, at which time Your Honor was present, and the identical point now urged was raised. At his request a letter was written by the chairman of the Commission covering the point and denying the point he is now raising. On January 24, 1943, a letter was written to Mr. Martin by the chairman, copy of which was sent me. I want this letter and all the other correspondence in the file to be made a part of the record in order to show that the point has been raised. . . ."

The referee then ruled:

"By the Referee: Those papers will be made a part of the record. And, although I am under the impression this point that is now being raised by the claimant has already been determined by the Commission in this case, I am going to again overrule the objection under provisions of § 19-d of the Act, which to my mind, is plain, that if the employer controverts the right to compensation he shall file certain notices, but the failure to file this notice will not prevent the employer raising any defense when the case or claim is subsequently filed by the employee, nor shall the filing of such notice preclude the employer from raising any additional defense."

From these excerpts from the record, it is thus clear that the appellee had all along controverted the claim, and appellant's counsel had been so informed. Even if the first notice to controvert was for some other ground than the defense of independent contractor, nevertheless, that point could be raised as late as the hearing. This is true because of § 19-d of the Act which concludes with these words: "nor shall the filing of the notice preclude the employer raising any additional defense." We, therefore, hold that, under the facts in this case, the defense of independent contractor could be raised as late as the hearing of March 25, 1943.

II. Was Doss Wren an Independent Contractor at the Time and Place he was Killed? Wren owned his own truck and was engaged in hauling gravel for appellee at $ 3 per load. Appellee loaded the truck at the gravel pit, and Wren hauled the gravel some 14 miles, and dumped the gravel at the place indicated by appellee. It was while Wren was driving his loaded truck on the public highway that another vehicle collided with his truck, and inflicted mortal injuries to Wren. As before stated, Wren was compensated for the loads hauled. He was free to make as many or as few trips per day as he desired. The appellee made no deductions from Wren's pay for Social Security or Unemployment Compensation. Wren could buy gasoline wherever he desired; or for convenience, he could buy it at a designated station and sign a ticket which would later be charged against his pay.

The Commission held that Wren was an independent contractor and not an employee; and therefore denied recovery to the appellant. The Commission used this language:

"The decedent owned his own truck and worked to suit his own convenience. The employer merely loaded the truck and showed the decedent where to unload. The evidence shows that the conduct of the decedent and his manner and means of working were not subject to the control of the respondent employer. Held, therefore, that the decedent was not an employee of the respondent employer within the meaning of the Workmen's Compensation Law."

If Wren was an employee of the appellee, then Wren was protected by the Workmen's Compensation Law, and the appellant should recover. If Wren was an independent contractor, then he was not protected by the Workmen's Compensation Law, and appellant cannot recover. The definition of "employee" in § 2 of the Workmen's Compensation Law is authority for these statements. See Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674.

Whether Wren was an employee or an independent contractor is thus the decisive question; and it is a question of fact. In Chapman & Dewey Lumber Co. v. Andrews, 192 Ark. 291, 91 S.W.2d 1026, it was insisted that the trial court should have decided as a matter of law whether the worker was an employee or an independent contractor; and, in denying that contention, this court said:

"We cannot agree with appellant that the court erred in refusing its request for a directed verdict in its favor. On the contrary, we are of the opinion that the question was one for the jury. We have many times held that 'an independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the employer only as to the result of his work.' Headnote, Ellis & Lewis v. Warner, 180 Ark. 53, 20 S.W.2d 320. Also that such status is usually a question of fact for the jury. It is the duty of the court to define the relationship, and for the jury to determine its existence. Ellis & Lewis v. Warner, supra. In this case, the facts are sufficient to take the question to the jury."

In Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S.W.2d 605, in discussing the duty of the jury to decide whether the worker was an employee or an independent contractor, this court said:

"A reasonable inference to be drawn from the evidence is that Westmoreland intended to, and did, retain the right to give directions in regard to the details of the work. In the case of Ice Service Co. v. Forbess, 180 Ark. 253, 21 S.W.2d 411, we said: 'The conclusion as to the relationship must be drawn from all the circumstances in proof, and where there is any substantial evidence tending to show that the right of control over the manner of doing the work was reserved, it became a question for the jury whether or not the relation was that of master and servant.' The circumstances proven in the case at bar raise a question as to the relationship of the truck driver to the Hobbs-Western Company to be determined by the rules announced in the cases cited, supra, which question the trial court properly submitted to the jury."

We have, also, held that when facts are made to appear, from which inferences are to be drawn and conclusions reached then it is for the jury to draw the inferences and reach the conclusions. In Grand Lodge v. Banister, 80 Ark. 190, 96 S.W. 742, Mr. Justice McCulloch said: "If the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they are properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury." In St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S.W. 338, Ch. J. McCulloch said: "When the testimony, though unconflicting, is such that different minds may reasonably draw different conclusions therefrom, then it is the duty of the trial court to submit the issues to the jury for determination, and on appeal the verdict of...