138 A. 863 | Pa. | 1927
Argued May 16, 1927.
On April 29, 1925, Chester Flaharty was accidentally killed while working in the defendant's mill yard and, because thereof, this action was brought by his widow under the Workmen's Compensation Act. The referee's award of compensation was affirmed by the workmen's compensation board and later by the court of common pleas; from which the defendant's insurance carrier *317
brought this appeal. The only question involved is whether there was any evidence in support of the referee's finding that the relation of employer and employee (equivalent under the statute to that of master and servant: Smith v. State Workmen's Ins. Fund,
It is very earnestly and ably urged for appellant that Flaharty was an independent contractor. He was a resident farmer in York County, but also did team work. The defendant, Trout, who operated a saw mill in the neighborhood, made an oral contract with Flaharty to draw logs from the woods to the mill, at $3 a thousand feet, log measure. The logs, consisting of oak, chestnut and hickory, were cut by defendant and left scattered about the woods where they were gathered up and drawn to the mill by the deceased. The defendant at all times directed the kind of logs to be hauled and when, and often suggested the place where they were to be left in the mill yard. The logs were to be and were drawn in quantities to supply the mill, and in kind to meet defendant's orders for lumber. For example, if he had a bill for oak lumber he would request the deceased to draw in oak logs. It was understood that when more logs were needed than Flaharty, unassisted, could draw, the defendant was to supply and pay for the extra help, without requiring the deceased to employ an extra team or extra men to assist him. The contract was indefinite as to duration and as to the quantity of logs to be moved thereunder; so that it could be terminated by either party at any time, — a strong circumstance against the theory of an independent contractor: 14 R. C. L. p. 72. That Flaharty was paid by the quantity, rather than by the day or hour, did not determine the status of the parties; numerous employees are so paid in factories, mines, etc. *318
It is not always easy to determine whether a party sustains toward another the relation of a servant or of an independent contractor. The rule as to the latter is stated by Mr. Justice SHAFFER, speaking for the court, in Simonton v. Morton,
The judgment is affirmed. *319