Powley v. Vivian & Co.

The single question for determination upon this appeal claimant, at the time he was injured', was an employe of the defendant, Vivian & Co., Incorporated, within the meaning of the Workmen’s Compensation Law, or was an independent contractor. Vivian & Co., Incorporated, hereinafter mentioned as “Vivian Co.,” was engaged, under a contract with one Coen, in dredging waters at Oyster Bay, N. Y., for which service it was to be paid for the quantity of sand and gravel removed. It was the owner of scows within which to dump and carry away the material dredged. The claimant was the owner of a dredging machine and appurtenances, and of the cooking, culinary, and commissary equipment thereof.

In July, 1914, the claimant and Vivian Co. entered into an agreement in writing by which the claimant agreed to furnish his dredge with its equipment and appurtenances in good working order to Vivian Co. for the use of Vivian Co. in its dredging operations during the continuance of an assigned contract between Vivian Co. and Coen; such lease of said dredge under the terms of the agreement not to extend beyond three years, the claimant further agreeing to turn over and deliver to Vivian Co. all the cooking, culinary, and

In accordance with this agreement, the claimant furnished the dredge with its equipment, together with the personal property mentioned in the agreement, and the performance of the work specified in the Coen contract was entered upon. Following the injury to claimant, the management of the operation of the dredge was continued by a person employed by the claimant. For use in connection with the dredging operations was a motor launch of which Vivian Co. was the lessee, from some person other than the claimant, which was used in carrying the men and supplies between the shore and the dredge, and was used generally wherever needed in connection with the dredging operations. In September, 1914, the claimant, in order to crank the motor, took hold of the cranking handle upon the flywheel. The motor back-fired, and the handle struck the claimant, breaking his right arm at the wrist. This is the injury for which compensation is sought.

The Workmen’s Compensation Commission found as conclusions of

[1, 2] Manifestly the first question to be considered is whether under the agreement the claimant was an employé or an independent contractor. Section 3 of the Compensation Law defines the term “employer,” as used in the act, as a “ * * * corporation * * * employing workmen in hazardous employments,” and defines the term “employé” as a “ * * * person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same. * * * ” An “independent contractor” is defined as one who exercises an independent employment and contracts to do a piece of work according to his own method and without being subject to the control of his employer, save as to the results of his work. Alexander v. R. A: Sherman Sons Co., 86 Conn. 292 , 85 Atl. 514 . The true test of a contractor would seem to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it. Shearman & Redfield on Negligence (6th Ed.) § 164; Hexamer v. Webb, 101 N. Y. 377 , 385, 4 N. E. 755 , 54 Am. Rep. 703 ; Cunningham v. Intern. R. Co., 51 Tex. 503 , 32 Am. Rep. 632 ; Andrews v. Boedecker, 17 Ill. App. 213 . An independent contractor is not in any legal sense a servant of his employer, but is one exercising an independent employment under a contract to do certain work by his own methods without subjection to the control of his employer, except as to the product or result of the work. Indiana Iron Co. v. Cray, 19 Ind. App. 565 , 48 N. E. 803 . To the same effect, Parrott v. Chicago Great Western Ry., 127 Iowa, 419 , 103 N. W. 352 ; Williams v. National Cash Register Co., 157 Ky. 836 , 164 S. W. 112 ; Wood on Master and Servant, § 424; Thompson on Neg. § 622.

While frequently it is difficult to distinguish between the position of servant, and that of a person exercising an independent calling, the evidence in this case strongly tends to relieve the uncertainty. The claimant was a contractor of 20 years’ experience in dredging operations, and concededly thoroughly competent to manage the operation of a dredge. While he was required to bear the expense of necessary repairs and new parts to the machinery, he had no power to hire or discharge a man, and paid no part of the dredging expenses. Vivian Co. paid the wages of the crew, the expenses of the commis

However, at the time of sustaining the injury the claimant was not engaged in the specific work of managing the operation of the dredge. He was necessarily, he says, transporting supplies to the dredge when he sustained the injury. Vivian Co. was obligated by the agreement to furnish these supplies. The launch man was its employe, and it was its duty to furnish a man to run the launch. In performing that duty Vivian Co. failed, and, as the claimant says, “I had to get the supplies myself.” In the performance of that act the claimant is to be regarded, not as an independent contractor, but as an employé, within the intent of the Workmen’s Compensation Law. “One who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed; * * * and he may even be a contractor as to part of his service and a servant as to part.” Shearman & Redfield on Neg. (6th Ed.) § 165. Where an independent contractor had finished a building, it was held that in throwing waste material from the roof he was acting as a servant of the owner. Swart v. Justh, 24 App. D.

[4] The defendants did not see fit to offer any explanatory evidence whatever upon the hearing before the Commission. The presumption, in the absence of substantial evidence to the contrary, is that the claim comes within the provisions of the Compensation Law (section 21). The evidence is meager, but upon it the Commission has found as a conclusion of fact that the injuries to the claimant were accidental, and arose out of and in the course of his employment. With such conclusion, which by the Compensation Law (section 20) is made final as to all questions of fact, I think we should not interfere.

The award should therefore be affirmed. All concur, except HOWARD, J., who dissents.