43 Del. 540 | Del. | 1947
delivering the opinion of the Court:
Consideration must first be given to the contention of the defendant that the Superior Court’s conclusions of fact are final. It refers to Section 18 of the Compensation Act, Code, § 6088, which provides that an award of the Industrial Accident Board, in the absence of fraud, shall be final and conclusive between the parties, unless appeal is taken to the Superior Court, in the manner provided in the law. It is not contended that the appeal to the Superior Court was not regularly taken. The defendant’s contention is that “nothing is said in the statute about any appeal from the Superior Court, and we may, therefore, safely conclude that the judgment of the Superior Court is meant to be conclusive.” But Article IV, Section 12 of the Constitution of 1897 provides for the issuance of writs of certiorari by this court to the Superior Court. Nor is that right confined to the correction of errors in proceedings that merely stem from the common law. Elbert v. Scott, 5 Boyce (28 Del.) 1, 90 A. 587; Jeans vs. Jeans, 3 Harr. 136; Schwan
The Industrial Accident Board heard but two witnesses, the claimant and William Hayes, the treasurer and general manager of the defendant. There was no material conflict in the evidence, except concerning the contract of employment.
It was shown by the evidence that on the date the claimant sustained his injuries, and for some time prior thereto, the defendant was engaged in the business of extracting oil from menhadden fish, which it used in the manufacture of products known as fish oil and fish meal. Sometime prior to the plaintiff’s employment, one of the buildings used by the defendant in connection with its business was damaged by a hurricane. Much of the damage was to the metal roof and siding of the building. To repair the roof and siding, the services of a skilled metal worker were necessary. The defendant had in its employ a large crew of maintenance men, but did not have as a member of the crew a skilled metal worker. Theretofore, when it was necessary to have roofing work done, the defendant usually hired outside men, because there was “more or less climbing” and it desired to have experienced men do the work. In the summer of 1944, some experienced men from the American Steel Band Company were brought in. They were paid on an hourly basis, they carried their own insurance, and payment for their services was made to the American Steel Band Company. The claimant, who was a structural iron worker, heard in February, 1944, that the defendant might have a job for him, and he saw William Hayes, the treasurer and general manager of the defendant, about it. He told Mr. Hayes the amount of wages he was then receiving, on the job at which he was working, and was told to return in a couple of weeks. In the meantime he finished the job at which he was work
Upon response to this letter the claimant was employed by the defendant. He went to work the day before Thanksgiving, 1944, was put on the payroll, and worked a little over two weeks before he sustained his injuries. For this period of employment he was paid $66.38 less a $4.40 deduction for State and Federal income taxes. The job required special tools, and, as was customary, the claimant used his own tools.
The claimant testified concerning the terms of the contract of employment, as follows: “I was employed to put up work — repairing the sheet metal on the building which is a part of a structural iron worker’s trade.* * * He [Mr. Hayes] put me on an hourly rate and if I gave him satisfactory work it would be an unlimited amount of time on account of the condition of the various buildings.” In answer to the question “Didn’t you say you felt the job would take about five months ?” he replied “What is absolutely tore off there now, but there is an indefinite amount of work to be done there. * * * The first thing I was assigned to one side of the building — I replaced the siding on one place of the side of the building.” He was asked “Was that part of the damage that was caused by the hurricane?” to which he replied “That is right.” He further testified “My understanding with Mr. Hayes was that I was employed to do all the necessary work that had to be done.”
William Hayes, the treasurer and general manager of the employer, testified concerning the terms of the contract
It has been truly stated that in order to ascertain if an employment is casual the courts have adopted various tests. In Schneider on Workmen’s Compensation, Per Ed., § 279 (d) it is said:
“The weight of authority is to the effect that the true test in each case is whether the service rendered or work done is of a casual nature, the infrequency of the employment or its duration being immaterial. The important consideration is the nature of the employment.
“Another test which is used in other states makes the contract of service the determining factor as to whether the employment is casual, rather than the nature of the particular work being done.”
Those states which apply the first test, follow what is known as the English rule; those applying the other test have adopted what is known as the Massachusetts rule.
The English Compensation Act, which had been closely
Connecticut is one of the few states which had a law containing language identical with that in the provision in the English Act. It was the Act of 1913, Pub. Acts 1913, c. 138, pt. B, § 43, as amended in 1915, Pub. Acts 1915, c. 288, § 22. That law was before the Supreme Court of Errors in Thompson v. Twiss, 90 Conn. 444, 449, 97 A. 328, L. R. A. 1916E, 506. The Court found that the Minnesota, Rhode Island, California and Connecticut Acts followed the British Act, and that under those patterned after the British Act the determinative point is the nature of the service rendered, citing Hill v. Begg, supra.
Under the Massachusetts law of 1911, St. 1911. c. 751, pt. 5, § 2, those employees were excepted from its benefits “whose employment is but casual or is not in the usual course of the trade * * * of his employer.” In Re Gaynor, 217 Mass. 86,104 N. E. 339, 340, L. R. A. 1916A, 363, the court contrasted the provision in its Act with the one in the English act, and was of the opinion that the difference in phraseology could not be treated as unintentional, but must be regarded as deliberately designed, and in speaking of the first condition in the provision in its law said: “It is possible that a distinction as to the character of the employment may be founded upon the difference between the modifying word ‘casual’ used in our act, and the words ‘of a casual nature’ in the English act. * * * The phrase of our act tends to indicate that the contract for ser
The court noted that the English Act was followed in many respects by the Massachusetts Act, and hence “even slight differences of phraseology may be assumed to have signification.”
We think what was said in the Gaynor case, touching the first condition in the provision in the Massachusetts Act, is applicable to the first condition in the provisions in our law. We are not unmindful of the fact that the two conditions in the Massachusetts Act are separated by the disjunctive “or” while in our Act they are connected by the conjunctive “and,” but we do not consider this lessens the value of the Massachusetts case as an authority to be followed in construing the condition in question in our Act. The conclusion of the Massachusetts Court as to the meaning of the phrase “whose employment is but casual” will be adopted by us in construing the phrase “whose employment is casual” in our law.
The only material conflict in the evidence involved the contract for service. The claimant testified that “he [Mr. Hayes] put me on an hourly rate and if I gave him satisfactory work it would be an unlimited amount of time on account of the condition of the various buildings,” while Mr. Hayes, on behalf of the defendant, testified that the claimant “was hired to put the roofing on the building that blew off in the hurricane” and that this “would have required two or three months, that is, working steadily.” Because of the conflict in the evidence, it was the duty of the Board to ascertain and state the true terms of the contract of employment. By the law, Code, § 6085, it is provided that in those cases in which a claim for compensation is involved, “the Board shall * * * hear and determine the
By this general finding, it is evident that the Board recognized that there was, what it deemed to be, a material conflict in the testimony, and that it accepted as true the testimony most favorable to the claimant, and made its award accordingly. This action of the Board was essentially ah award based upon a finding that, as a fact, the contract of hire was as testified to by the claimant.
In those cases, such as the instant one, in which the civil law procedure is followed, this Court ordinarily, upon appeal, will not disturb a finding on the facts by a lower court, in this instance The Industrial Accident Board, if it appears from the record that there was evidence to support the finding. The reason for the rule generally observed by reviewing courts, is that the trial court sees and hears the
In Re Gaynor, supra, it was said: “The word ‘casual’ is in common use. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity and is occasional and incidental. Its meaning may be more closely understood by referring to its antonyms which are ‘regular,’ ‘systematic,’ ‘periodic,’ and ‘certain.’ ”
On the other hand, it has been said that “it would be difficult, if not impossible, to formulate a hard and fast inclusive and exclusive definition of ‘employment but casual,’ ”. This was said by the Court in Mitchell’s case, 121 Me. 455, 118 A. 287, 289, 33 A. L. R. 1447, in construing the Maine law, Pub. Laws 1919, c. 238, § 1, par. 2, and the same might be truly said of the phrase “whose employment is casual,” as used in our Act.
In the present case, it is to be noted, the defendant was engaged in the manufacture of fish oil and fish meal. In the regular course of that business, it -had in its. employ a
From the record in the case we feel fully justified in accepting as true the testimony of the claimant that “He [Mr. Hayes] put me on an hourly rate, and if I gave him satisfactory work, it would be an unlimited amount of time on account of the condition of the various buildings.” We think this shows more than an incidental employment. We • think it shows that claimant was given employment which was to be regular and continuous, and not employment which could be reasonably described as casual. The fact that prior to the claimant’s employment, the defendant used outside labor or independent contractors to do roofing work
The judgment of the court below will be reversed and the record will be remanded, with instructions to enter a judgment affirming the finding of The Industrial Accident Board.