Western Indemnity Co. v. Shannon

WILSON, O. J. (after stating the facts as above). Unless the judgment is wrong because the testimony did not warrant the finding that Shannon was an “employé” of Simmons within the meaning of the Workmen’s Compensation Act (chapter 5, tit. 77, Vernon’s Statutes, 1918 Supp.) at the time of the accident resulting in his death, we think the assignments in appellant’s brief show no reason why it should not be affirmed. Appellant’s contention with reference to that question is that the testimony not only failed to show that Shannon was such an employé, but, on the contrary, established as a matter of law that Shannon was an independent contractor at that time. In the act referred to an “employé” is defined as; “Every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.” Article 5246 — 82. The testimony was sufficient to show that Shannon surfaced the floor under a contract made by him with Simmons in the usual course of the latter’s business. Hence he was an “employé” within the meaning of the law if he was in Simmons’ service while he was doing the work; that is, if the relation of master and servant existed between him and Simmons.- That relation has been said to exist “whenever the employer retains the right to direct and control the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done.” 26 Gye. 966. “The master test,” the authorities say, “is the right to control the work.” “Who has the right to direct what shall be done and when and how it shall be done? Who has the right to general control? ” Kelley’s Dependents v. Hoosac Lumber Co., 20 N. C. C., A. 902; Kinsman v. Hartford Courant Co., Id. 527. If the employer has such right, in a given-ease,- the person who does the work is his employé. If the person who does the work has the right, he is not an employé, but is an “independent contractor.” Simmons testified, and he was the only witness who did testify about the matter, that he had no agreement with Shannon “as to how he would do the work, nor what he would be paid for it, or anything of that kind”; that he (Simmons) “had nothing to do with how the machine was handled,” with how Shannon “surfaced the floor,” and “no control on how he did the work, except to accept or reject it.” Simmons further testified that when Shannon had about completed the surfacing of the floor of one of the rooms he told him “that floor (quoting) would be all that he wanted him to use that machine on, because he could not use it and avoid damaging the paint.” We have found no other testimony in the record pertinent to the question, and we can see no way of escaping the conclusion that the testimony specified established as a matter of law that the relation of Shannon to Simmons was that of an independent contractor, and not that of an employé, within the meaning of the Workmen’s Compensation Law. The eases most relied on by appellees Mrs. Shanuon and her son as supporting a contrary view of the testimony are U. S. F. & G. Co. v. Lowry (Tex. Civ. App.) 231 S. W. 818; McNally v. Diamond Mills Paper Co., 223 N. Y. 83, 119 N. E. 242; Tuttle v. Lumber Co., 192 Mich. 385, 158 N. W. 875, Ann. Cas. 19180, 664; and State v. District Court, 128 Minn. 43, 150 N. W. 211. In the case first cited the question was whether Lowry, a traveling salesman, was an “employé” of the “subscriber” or not. The court held that a finding that he was was warranted because there was evidence: “That he was actually controlled by his employer in the performance of his work, at least as to the main features of his employment, such as the soliciting of orders, the prices at which he should sell, and the terms of sale, the allotment of specified territory, and the approval and consummation of his sales by his employers.” “These considerations,” the court said, “are decidedly characteristic of the services of an employé, rather than the contract or undertaking of an independent contractor.” The comment of the court on the testimony in the McNally Case shows it was radically different from this one. The court said; *776 ‘‘McNally did not undertake to accomplish a specific job in .his own way. He did not undertake to accomplish anything. He undertook to help and to obey.” In the Tuttle Case it appeared the plaintiff’s husband was thrown from a load of logs while he was driving the team drawing the logs from a skidway where they were loaded to a mill. The loading and unloading of the logs was done by other employés of • the defendant and was under its control, both as to time and place, and it was mainly because of this control, it seems, that the court concluded he was an employé and not an independent contractor. In the other case specified (State v. District Court) one Bashko was injured while getting out- ties, poles, and posts for the Virginia & Rainy Lake Company. The court held that the testimony was sufficient to make an issue for the jury as to whether Bashko was an employé or an independent contractor, saying: “The evidence tends to: show that the company did not surrender, but reserved, the right to supervise and control the work of Bashko, at least to the extent necessary to prevent waste and loss. They required him to cut the timber clean as he went, and to manufacture it according to specifications furnished by them, and also to pile the brush. They inspected his work from time to time and occasionally directed him to remedy defects therein. They had the right to discharge him at any time, and this right afforded adequate means foi controlling his work.” The insistence of appellees Mrs. Shannon and her son in the instant case that the judgment was warranted seems to be based, largely, on the concluding remark of the court in the excerpt from the opinion in the Bashko Case and their view that it appeared from the testimony that Simmons had the right, and exercised it, to discharge Shannon before he completed the work of polishing the floors in the building. The .only testimony in the record as to that matter is that referred to above, to the effect that Simmons told Shannon, when he had about completed the polishing of the floor of one of the rooms, that he would not want him to polish others. If it should be conceded that that testimony established that Simmons had a right to discharge Shannon before he completed the polishing of the floor of the room he was working on, we think that fact that Simmons had such right would lack probative force when considered as it should be in connection with Simmons’ uncontradicted testimony that he had no control over Shannon as to the work, “except to accept or reject it.” As we construe it, the testimony establishes conclusively that Shannon was an independent contractor, and not an “employé,” within the meaning of the Workmen’s Compensation Law, and we cannot do otherwise than reverse the judgment. And, as it must be reversed on that ground, it follows judgment should be here rendered that ai>pellees Mrs. Shannon and her son take nothing by their suit against appellant. The judgment will be affirmed as far as it is in favor of the Associated Employers’ Reciprocal. On Motion of Appellees for a Rehearing. We have again gone over the testimony in the record, and, after further careful consideration of same in the light of the motion, are still of the opinion it did not warrant the finding that Shannon was an employé of Simmons within the meaning of the Workmen’s Compensation Law. Therefore the motion is .overruled.