Lead Opinion
II. The commissioner found against' liability, on the ground that claimant was a contractor.
Speaking through Mr. Justice Weaver, we said, in Fischer v. Priebe & Co.,
“It was not within the authority of the court to review or reverse or mоdify the award. Its function in the matter was simply to receive the award certified to it, and ‘render a decree in accordance therewith and notify the parties.’ ”
We need not go so far as this, and in Griffith v. Cole Bros.,
“Courts may not interfere with the findings of fact made by the industrial commissioner, when these are supported by the evidence, even though it may be thought there be error.”
We said in the same ca^e that his finding of fact on whether there was an employment is conclusive if the evidence be in conflict, or be open to the drawing of different inferences. In Pierce v. Bekins V. & S. Co.,
“The effect of the Griffith case [
On application of these, and of statute provision that we shall not have fact questions submitted to us, the sole question now is whether we may say that there was no conflict, no room for the drawing of different inferences', and that, therefore, as matter of law, the finding of the commissioner is not sustained by the competent evidence.
III. One line of evidence is this: The plaintiff’s general business was teaming, which he pursued with his own team. For the most of the year, he hauled for the city and for material-men, thus obtaining steadier work and better pay than defendant could give him. He hauled coal for defendant only when the demand for coal was so acute that there was more hauling than the regular employeеs' of the defendant could handle. He admits he earned his livelihood by using his own team, and
He was injured while engaged with his own team in delivering coal that he was hauling for defendant. While walking beside the wagon, it passed over his foot. He was alone, and was handling his own team.
In effect, his so-called employment did not differ from employing a drayman, as to whom the cases stress the fact that they are not employees, because, owing to the indefinite character and amount of their work, the right to discharge is never created. Tuttle v. Embury-Martin Lbr. Co.,
In Ash v. Century Lbr. Co.,
IV. Norton is not an employee, within the act, because there was no right to discharge him, and the right to discharge for misconduct or disobedience is an essential test. Pace v. Appanoose County,
“While the defendant at any time might have interrupted the employment of the man and team in hauling, it was without authority to discharge Cruse as driver of Mrs. Wright’s team, or to substitute another in his stead.”
'Certainly, Norton was the owner of the team with which he did the hauling, and as certainly defendant could not substitute another to drive this team, without the consent of Norton.
V. One can so engage himself аnd his team to another as that the latter shall be in control of both. But he does not become a servant, merely because he engages himself and his own team to work for another. To make the relationship, the master must be in control of both man and team. Ash v. Century Lbr. Co.,
Defendant was given no right whatever to control the management and care of the team, and it never attempted to exercise any control on that head. The care and management remained entirely with Norton.
YI. The relationship of master and servant does not exist, unless there be the right to exercise control over methods and detail, — to direct how the result is to be obtained. The power to direct must go beyond telling what is to be done, — to telling “how it is to bе done.” Zeitlow v. Smock,
In Smith v. State Workmen’s Ins. Fund,
In See v. Leidecker,
In Ash v. Century Lbr. Co.,
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It is elementary doctrine, and it would fill many pages to cite the supрort it has, that one is not an employee if he may choose his own method of working,—the mode and manner of doing the work. We select Smith v. State Workmen’s Ins. Fund,
It is not enough that there be power to see to it that the work is done to the satisfaction of the one who gives it. This power is control over ultimate results, and not over methods, means, and details. Humpton v. Unterkircher,
The mere making of suggestions as to the methods of work to be pursued will not establish the relationship of master and servant, even though the suggestion be as to details or as to the co-operation necessary to bring about the larger general result. Carleton v. Foundry & M. P. Co.,
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In Ash v. Century Lbr. Co.,
VII. Some of the cases have much similarity to this case as a whole, but exhibit less reason for finding against employment than appears in this case.
The Pace ease approves Busse v. Brugger, 3 Annual Rep. (1914) Wisconsin Industrial Com. 78. There, the applicants owned an ensilage-cutting outfit, an ensilage-cutter machine, and a silo-filling outfit. They engaged to farmers to cut and fill, and gave' their personal services, as far as necessary to operate the machinery, and did so at a stated sum per hour fоr the time actually consumed in filling the silo. The farmer furnished the gasoline only. It was held that these men were independent contractors. It was emphasized that they had the right to com
"On the facts stated here, I cannot find anything to indicate that this man was a servant, employed by a master and remunerated by wages: that is, at so much per day or per hour or per piece. The present ease is a case in which a man who has a horse of his own goes to a firm of timber merchants; they say that they want logs removed from one place to another; he says, ‘I have a horse, I shall bring it and work any day you wash me to do so, and for that you will pay 8s. a day.’ There is nothing there of the nature of wages. It would have been the same thing if he had brought 20 horses to do the work, instead of one. The contract was that he should get the work done. It was not a contract that lie should do the work personally, but that he should do it in the only way in which it could be done, by having somebody to lead the horse. That is nоt a contract of service.”
Ryan v. County Council, 49 Ir. L. T. 1, approved in the Pace ease, has quite a similarity to the case at bar. Deceased owned a horse and cart, and did a carting business. For several years, he had hauled stones for the county council; though he did not work continuously, but for a day or a part of a day, as he wished, being under no obligation to do the work at any particular time or in any particular manner or to do any particular amount on any one day. He was not controlled in the work by the council, except that their surveyor told him whether and where he desired the stones to be hauled. Ryan was kicked by his horse while harnessing it, preparatory to going to work to haul the stones; and, relying largely on Chisholm v. Walker & Co., 2 B. W. C. C. 261, the court held Ryan to be an independent cоntractor.
VIII. In some cases upon which we have drawn, the claim
It can make no difference that, additional to furnishing the team, Norton worked with it himself. In Western Indent. Co. v. Pillsbury,
“And whether such servant has been appointed by the master directly, or intermediately though the intervention of an agent authorized by him to appoint servants for him, can make no difference."
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Had a third person furnished the team, and Norton as its driver, it would scarcely be questioned that, under the record in this case, defendant would not have been liable, had the negligence of Norton injured someone other than Norton. See Ash v. Century Lbr. Co.,
Now, the great weight of authority holds that one test of
It is our judgment thаt there is sufficient competent evidence to sustain the finding of the industrial commissioner. It follows that the district court erred in annulling his order, and that the judgment of that court must be — Reversed.
Dissenting Opinion
(dissenting). I. While the statute referred to by Mr. Justice Salinger, at the outset of his opinion, is cor
It will thus be seen that, subject to the express exceptions found in the statute itself, the Compensation Act embraces within its scope all'employers and all employees, without reference to their classification at cоmmon law. It addresses its provisions, not to master and servant in the strict technical sense, but to “employer” and “employee,” and prescribes for itself the meaning which shall be given to these terms. Observing this statute, the sole question in cases of this character is whether the claimant of compensation entered the employment of the defendant or worked for him under contract of service, express or implied, and whether the injury of which he complains “arose out of and in the course of his employment.” If this inquiry her answered in the affirmative, it matters not what may be the nature of the service performed, or what the terms of the contract may be: the parties are thus brought within the scope of the act, and to this alone wе must look for the measure of their mutual rights and obligations. If there be a contract of service, either express or implied, and the employee does not occupy the relation of a mere contractor, it is wholly immaterial whether he works by the year, month, day, or hour; whether his employment be for a fixed period or is terminable at the will of either party, or whether he receives payment on the basis of the time employed or of the work accomplished. That plaintiff did, in fact, work under contract, and receive injury arising out of and in the course of his employment, is shown without dispute;
It is true, as suggested by the opinion, that the commissioner found for the appellant, that plaintiff was a contractor, and therefore not entitled to compensation. It is also true, as further suggested, that, where the facts found by the commissioner have support in the evidence, such finding is not open to review on appeal; but it is equally* well settled that, when the “transcript makes, it appear, as a matter of law, that such finding is not sustained by competent evidence, or is contrary to the evidence,” the court may, on appeal, reverse the еrroneous judgment. See Griffith case,
The ease now before us is one calling loudly for an application of such rule.
II. The rule that the act should be liberally construed, and its provisions so applied as to promote the intended relief to injured employees, is quoted by the majority — -though for what purpose is quite undiscoverable; for, in its discussion of the facts and law of the case, the opinion treats the rule of liberal construction less as a standard by which the court is to be guided than as a starting post from which to sail away and never return.
III. 'As illustrating the tendency, I call attention to pertinent facts concerning which the majority goes far astray. It is true, the xolaintiff owned a team of his own, and during the summer season earned his living principally by work for the city. As winter approached, and city work slackened, he gave his time and attention to hauling coal; and for several winters he had found employment in that line with the defendant coal dealer. At the opening of the winter in question, he went to the defendant’s office, and sought again to take up the work of hauling coal in their service, and was told to be on hand the next morning for that purpose. It was arranged that he should use his own team and wagon, the defendant furnishing a wagon box, on which its name was painted. For the work of hauling and
In all this there is nothing whatever inconsistent with the plaintiff’s relation as the employee of the defendant, and nothing Avhatevef to characterize him as an independent contractor. In face of this showing, it seems strange that the opinion should say that the “claimant could go or come when he pleased, and work or not work, as he pleased. He had the right to say what time he would devote to coal hauling. He could decline, from time to time, to haul at all, ’ ’ etc. If this be literally true (though it is not true in the apparent sense intended), what of it? It is equally true of every person engaged in the service of another. The hired workman or servant is not a slave, nor is his employer clothed with absolute authority to control his servant’s movements. The one may drop the service at any moment, and the other may sever the relation and peremptorily discharge the employee; and the possession, or exercise of such power does not prove that the relation between them is that of contractor and eontractee. The plaintiff was. both employed and engaged in the business of hauling coal for defendant. He had been steadily so employed and engaged for at least five weeks, and, but for his injury, would doubtless have continued in that relation for the remainder of the winter, as'he had on previous occasions.
There is still another proposition, -which seems to have
A person who provides his own horse, and undertakes with the proprietor of a dairy to cart mills to and from a creamery during a certain period, on such dates as the proprietor should fix, and to receive pay at a rate per gallon of the milk hauled, is a servant, and not a contractor. Clark v. Co-operative Society, Law Reports Curr. Dig. 1913, Vol. 772.
A workman employed to cart stone, using his own cart and horse, and paid by the day, and working for other people when not needed by such employer, is a workman, under the Cоmpensation Act. McNally v. Fitzgerald, 7 B. W. C. C. 966.
The precedents to this general effect are numerous, but I will extend this dissent no further than to cite two comparatively recent cases, which are entirely parallel, in fact and principle, with the case at bar. In Tuttle v. Embury-Martin Lbr. Co.,
The court, basing its conclusion upon the statute and upon the admitted facts, and referring to authorities upon the distinction between employee and contractor, says:
“In some cases., much stress is laid upon the fact that the work to be performed is of an indefinite amount, subject to discharge and control in that regard. Others, whether the employment is of a general, independent character, like that of draymen and common carriers, becomes the controlling question. We are of thе opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cyc. 1547. In our opinion, there was such control over the work of Tuttle, by the company, as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to terminate it at any time, and it was for no definite period or amount. The loading and unloading were under control of the compány, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, but that was true .of all the drivers, whether working by the month or the thousand.”
“We think this evidence shows that the person who delivered the coal was in the service of the defendant, though the term of service was precarious; and we do not see that it is material that he was paid by the load, by the hour, or by the day for his work. He represented the master in all the details of the work enumerated, and, while he remained in defendant’s employment, he was subject to its control. If he had been at work by the day or by the month, and had been furnished with a team and wagon by the, defendant, would the circumstances of the delivery have been any different ? Or would the control of the defendant over the acts of the employee have been otherwise or greater than it was ? His orders were to collect the pay for the coal in advance. If it had not been so paid for, he would have been obliged to have brought the coal back to the yard. The testimony shows that he had worked for the company about three months, hauling coal daily. He had, in the meantime, rendered service for no one else, and appeared to be subject to its orders, and was treated as one of its teamsters or drivers. It is not easy to frame a definition of the terms ‘independent contractor’ that will satisfactorily meet the conditions of different cases аs they arise, as each case must depend so largely upon its own facts. One text-writer declares such contractor to be one who undertakes to do
The distinction between employee, or servant, and independent contractor has often been considered by the courts, but no statement of the rule has yet been accomplished which perfectly fits every case. The rule quoted above by the Minnesota court from Shearman & Redfield’s Negligence is perhaps the one most generally approved. But while the reserved right of the employer to control the details- of the work is the most obvious test of the relations of employer and employee, it is to be kept in mind that it is the power or authority to control, and not the control actually exercised, to which we must look in reaching our conclusion. As having bearing on the point here discussed, see, also, Madisonville H. & E. R. Co. v. Owen,
The defendant was a dealer, receiving orders and calls for coal from individual consumers scattered over the city, necessitating the employment of haulers, by whom such orders could be filled. The plaintiff was employed for that purpose. Such service implied authority on the part of the defendant to direct when, where, and to whom deliveries were to be made, and duty on plaintiff’s part to observe all reasonable and proper directions with reference to the work he undertook to perform. He was at all times at the beck and call of his employer, in a manner and to an extent inherently inconsistent with the independence of a contractor.
It is wholly immaterial whether he engaged in other work in the summer season, or served different employers on other occasions, or that this employment was for no definitе period, and might be terminated at any time. Subject to the statutory exceptions, and no other, the law imposes on the employer the obligation to make compensation to his employees for injuries arising out of- and in the course of their employment, without regard to the nature or terms or tenure of the service performed by them. It also imposes upon the arbitrators, the commissioner, and the courts the duty of liberal construction of its terms; and if, in any given case, the proved facts leave the question in doubt whether the relation between the parties is that of employer and employee, or contractor and contraetee, an observance of'the rule last mentioned requires the doubt to bе resolved in favor of the claimant. So far as this case is concerned, we need not go to this extent; for there is no room for reasonable doubt of the plaintiff’s right to the compensation adjudged to him by the trial court.
Such award is not the imposition of a penalty. The statute provides no penalty nor punishment. It simply recognizes the essential justice of making an industry, or business bear, in some reasonable degree, the burden of the human wreckage which its prosecution brings about. In this manner, and by providing for insurance against such liability, the ultimate loss falls upon so
The opinion prepared for the majority is destructive of the statute, both in letter and in spirit. It ought not to have our approval. The judgment appealed from should be affirmed.