102 F.2d 620 | D.C. Cir. | 1939
This is an appeal from a decree of the United States District Court enjoining the enforcement of a compensation order.
By Act of May 17, 1928,
“This Act [chapter] shall not apply in respect to the injury or death of * * * (4) an employee engaged in * * * any employment that is casual and not in the usual course of the trade, business, occupation, or profession of the employer.” D.C.Code 1929, T. 19, § 12.
The questions for decision here are: First, was appellant Fenner an “employee” in the sense in which that term is used in the Compensation Act? Second, if so, was his employment casual and not in the usual course of the employer’s business?
The deputy commissioner found as facts: that on the 1st day of May, 1937, claimant was in the employ of one Mocka-bee in the District of Columbia; that claimant was performing service for the employer as a tank cleaner at one of two gasoline stations owned and operated by the employer; that he sustained personal injuries when an explosion occurred in the tank; that the employer had notice of the injury and furnished claimant with medical treatment; that the work performed by the claimant was in the usual course of the
In Crowell v. Benson, 285 U.S. 22, 53 S.Ct. 285, 76 L.Ed. 598, the Supreme Court said that Congress in providing in the Longshoremen’s Act for injunction proceedings
Claimant testified that his business and occupation was that of a tank and pump mechanic; that he had worked for Mocka-bee at odd jobs from time to time as he was called upon; that he had no regular employment but for 15 years had been working in his line for various persons, corporations, and partnerships, that is to say, mostly around tanks, installing them, repairing them, and cleaning them, charging either a lump sum for the job or by the hour or in some cases by the month; that at times he would send a statement of his account on his letterheads or billheads made for that purpose. His first job for Mockabee was in 1932, when he installed gasoline tanks for a service station. “Then, after the station, I did his repairs. Whenever he had any repair work to do, he would call me in, and on either one of those stations there his employee or the son would check the time when I arrived to start the work and when I left. When this job was done at this work I was working at, I took this time slip down to him and he would pay me off according to the number of hours I had made”. The last job for Mockabee prior to the injury was some six months or more before. The injury occurred on May 1, 1937. Mocka-bee called him on the job because of trouble with a kerosene tank, and told him that he wanted it repaired. Claimant went to work on Thursday morning prior to the injury and found so much surface water over the top of the tank that he could not get to the manhole. He reported this to Mockabee, and it was agreed it was desirable to postpone the work until the water went down. On the following Saturday morning, after claimant had resumed the work, the explosion took place. Claimant was asked:
“Q. On this particular job where the explosion occurred, did I understand you to say that the work was to clean the gasoline pump or the kerosene pump ? A. Kerosene pump.
“Q. You had to clean it? A. Yes, sir.
“Q. Had you done that before for Mr. Mockabee ? A. I had, yes; cleaned their tanks; yes.
“Q. In the same way you were going to do this job? A. Yes, sir.
“Q. Was there anything said as to how the work was to be performed? A. No, sir.
“Q. He left that entirely to you? A. No, sir — yes, sir; he left that entirely to me. He just came down there and looked down and asked me when I would be finished, and I told him I couldn’t tell; maybe it would be two or three hours; something of that kind.”
Claimant’s testimony as to the circumstances of the work was corroborated by Mockabee, who said that he had first hired claimant to install the tanks on a contract for so much for the job when completed, and that subsequently on three or four occasions he had engaged him to do repair work on the tanks; that he had never directed him how to do the work “because that was up to him to know”; that claimant had no regular hours for coming to work or quitting, but that on repair jobs he paid him for the actual number of hours required to do the work at so much per hour.
In our opinion claimant was not an employee, but an independent contractor, for the evidence shows that, in carrying on the business in which he was engaged, he contracted with Mockabee to do the work according to his own methods and without being subject to the control of
Second. Since in dur opinion claimant was an independent contractor, he is not entitled to claim under the Compensation Act as an employee, and-in this view it is unnecessary to decide the other question, namely, whether claimant’s employment was casual and not in the usual course of the business of the employer. The question, however, in relation to the facts of this case, is settled in this jurisdiction by our decision in Hoage v. Hartford A. & Indemnity Co., 64 App.D.C. 258, 77 F.2d 381, in which we held that a bank’s employment of an ironworker to repair a door in the banking house is casual and not in the usual course of the employer’s trade or .business, since the word “casual” means incidental or occasional, and the words “usual course” refer to normal operations constituting the regular business of the employer. At the time of injury Fenner was engaged in repairing an instrumentality used in Mockabee’s business. His employment was not regular in the sense of being constant. It was only occasional, lasting for short periods three or four times in four or five years. And we have held that no compensation is due for an injury incurred during the performance of a repair job. by a person occasionally employed for that purpose. Authorities to the contrary are inconsistent with the rule in Pennsylvania and in California, which in the Hoage Case we chose to follow. Callihan v. Montgomery, 272 Pa. 56, 115 A. 889; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 P. 1031. Cf. Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N.W. 876.
Affirmed.
45 Stat. 600, D.C.Code. Tit. 19, ch. 2, §§ 11, 12, 33 U.S.C.A. § 901 note.
44 Stat. 1424, 33 U.S.C. 901, et seq., 33 U.S.C.A. § 901 et seq.
Longshoremen’s and Harbor Workers’ Compensation Act, sec. 21, 33 U.S.C. 921, 33 IT.S.C.A. § 921.