Charles v. Lincoln Construction Co.

Neill Bohlinger, Associate Justice. The appellant in this case was a laborer who was injured while working on the construction of a school building at Star City, Arkansas. He filed a claim for workmen’s compensation against the appellee, Lincoln Construction Company, alleging that he was an employee of the Lincoln Construction Company and had a compensable injury. At a hearing before the Workmen’s Compensation Commission that Commission disallowed his claim and an appeal was taken to the Lincoln Circuit Court which affirmed the finding of the Workmen’s Compensation Commission and denied the claim against the Lincoln Construction Company from which action this appeal is prosecuted. It appears from the record before us that the appellant had been employed from time to time by the appellee, Lincoln Construction Company, and that he worked under their foreman, Phillip McFall; that some time before the accident complained of the Star City School District decided to build two school buildings and deemed it more economical to do the work by its own employees rather than let a contract. The School District agreed with the appellees upon the use of appellee’s foreman, Mr. McFall, as general superintendent in the operation of building the two schools. There is nothing in the record that indicates that the appellee had any contract with the School District or interest in the erection of the two school buildings. Mr. McFall recruited his own laborers and the School District paid Mr. McFall and the laborers. Mr. Dayton Fish was one of the partners in the Lincoln Construction Company and was a member of the School Board and in addition thereto he maintained a business known as the Builders Supply Company where for a number of years it was customary for most of the contractors in that vicinity to go to recruit their labor supply. The appellant had, from time to time, gone to the Builders Supply store and had been directed by Mr. McFall where to go or would be transported by McFall to the site of such work as would be required of him. It further appears that at times the appellant would work part of a day on the school job and the balance of the day at a Lincoln Construction job. Appellant’s time on the various jobs was kept separately and he was paid according to the hours he worked on each job. All of his checks were received through McFall but wages earned at the school site were paid by a check on the School District and wages earned at a Lincoln Construction job were paid by a Lincoln Construction check. In South Arkansas Feed Mills v. Roberts, 234 Ark. 1035, 356 S. W. 2d 645, opinion delivered April 16, 1962, we quoted from Larson’s Workmen’s Compensation Law, 710, under the heading “Lent Employees and Dual Employment”: “§ 48.00 When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if (a) The employee has made a contract for hire, express or implied, with the special employer; [Emphasis added] (b) The work being done is essentially that of the special employer; and (c) The special employer has the right to control the details of the work.” In this case we also quoted from Stuyvesant Corporation v. Waterhouse, (Fla.) 74 So. 2d 554, as follows: “Basically and fundamentally, after all the chaff is cast aside, the solution of almost every such ease finally depends upon the answer to the basic, fundamental and bedrock question of whether as to the special employer the relationship of employer and employee existed at the time of the injury. If the facts show such relationship, the existence of a general employer should not change or be allowed to confuse the solution of the problem. ’ ’ Likewise we quoted from the Nepstad v. Lambert case, 235 Minn. 1, 50 N. W. 2d 614: ‘ ‘ Since both employers may each have some control, there is nothing logically inconsistent, when using this test, in finding that a given worker is the servant of one employer for certain acts and the servant of another for other acts . . . The crucial question is which employer had the right to control the particular act giving rise to the injury. In this connection, Restatement Agency, § 227, comment a (2) states: i * * * gjnce question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other.’ (Italics supplied.) ” It appears clear from the record and the Commission and trial court so found, that appellant Charles was working for two different employers at different times and that the work was separable. This presents the question as to whether or not the appellant knew and consented to work for the School District. The case of Ledbetter v. Adams, 217 Ark. 329, 230 S. W. 2d 21, covers this situation: “* * * the authorities hold (1) that the original employer remains liable under the Workmen’s Compensation Act, until there has been a reasonable time, or course of events, for knowledge of change of employer to be brought home to the employee; and (2) that the relationship of employer and employee is presumed to continue for a reasonable time after a sale of the business made without the knowledge of the employee. See Palmer v. Main, 209 Ky. 226, 272 S. W. 736; Buchanan Min. Co. v. Henson, 228 Ky. 367, 15 S. W. 2d 291; Schneider’s Workmen’s Compensation Test, Perm. Ed., § 788; Horowitz on ‘Workmen’s Compensation,’ p. 228, et seq.; and also 71 C. J. 397 * * [Emphasis added] The contention is made that Charles, the appellant, was the employee of the appellee but the appellee had no control of nor financial interest in the work on which appellant was injured and we think that more than three months time is a reasonable time and the courses of events are such as to bring home to appellant the status of his employment. Testifying in his own behalf appellant was asked as to the kind of checks he received: “A. I’d get a green one from over to the school and I’d get a pink one from Lincoln Construction. Q. And so you knew then that when you were working over at the schools you would get paid by a green check signed by the Superintendent, didn’t you? A. That’s right. Q. And you knew that when you went to what you call a Lincoln Construction job you got paid for that by a pink check? A. That’s right. Q. I’m talking about when you got hurt that day. You knew by that time that you were being paid by the school district, didn’t you? A. Oh, yes, sir, I knowed it then. Q. Didn’t Mr. McFall keep a record of the time you spent out there on the School District and isn’t that the time you got paid for by the school? A. That’s right.” A fellow workman, Sherman Rochelle, whose employment was in all respects similar to that of appellant, testified as follows: ‘ ‘ Q. Now, Sherman, when you are working out there for the school, who do you understand you are working for? A. Mr. Phillip McFall. At least I know what they said, I was working for the school but I was assigned on to him. Q. You work where Mr. McFall tells you but when you are out there working on the school ground site or you know where they are building the school, don’t you understand you are working for the School District at that time? A. Yes, sir. Q. Isn’t that who pays you? I mean isn’t that the kind of check you get at the end of the week? A. I get a school check. ’ ’ Further on in the testimony he was asked: “Q. Don’t you know the school is going to pay you for the work you do on their building? A. Yes, sir.” It therefore appears clear that the appellee had no interest in the school construction job and in no wise controlled it and that the evidence sustains, and the Commission and the Court so found, that the appellant, by reason of the time and course of events, was bound to have become aware of the status of his employment. The judgment of the Circuit Court is affirmed. Harris, C. J., not participating. Robinson and Johnson, JJ., dissent.