Opinion
Opinion filed October 1, 1929.
Master and Servant — Workmen's Compensation Act — Independent Contractor — Sufficiency of Evidence To Make Prima Facie Case That Claimant Was Employee — Test for Determination Whether Employment is "Purely Casual" — Meaning of Term "Casual" — Insufficiency of Evidence To Establish Prima Facie Case of Ordinary Service — Burden of Proof — Uncertainty and Irregularity of Claimant's Services as Characterizing Nature of Jurisdiction.
1. In proceeding under Workmen's Compensation Act, if claimant for compensation was not employee, but independent contractor, or if his employment was purely casual, commissioner of industries was without jurisdiction, and any order made by him was void.
2. In such proceedings, findings that claimant, who was stonecutter, worked at his trade during usual working hours, and worked for motor company, under parol contract to sell both new and used automobiles on commission, "after hours," Sundays, and holidays, motor company to furnish cars to be sold and gas and oil necessary for their demonstration, and claimant being permitted to show cars to whoever he could interest and to demonstrate them when he chose, but being required to submit all proposed transactions to motor company for approval, held to make prima facie case that claimant was employee of motor company.
3. Test in determining whether one who is performing work for another is servant or independent contractor is right of one for whom work is done to control work and direct means and methods by which it shall be done.
4. Whether employment is "purely casual" within meaning of Workmen's Compensation Act is to be determined by contract for service.
5. Word "casual" means something that comes without regularity, and is occasional and incidental.
6. In proceedings under Workmen's Compensation Act, where findings showed that claimant, who sold automobiles for a motor company on commission, was not required to work for that company at any certain or regular time, but only did what he could after hours of his regular employment as stonecutter and on Sundays and holidays, demonstrating cars at his own, and customer's convenience, held that findings did not make prima facie case of ordinary service, but merely an opportunity to devote such of his spare time as he saw fit to sale of cars, with no obligation to use any of it therefor; and that his employment not being regular, periodic, or certain, burden was on claimant to show that such employment was not purely casual.
7. Uncertainty and irregularity of claimant's service under contract to work for motor company in sale of cars on commission, after hours, Sundays, and on holidays, characterizes nature of his employment, and not fact that what he might do would be done outside hours he worked at his trade.
8. Where claimant's employment was purely casual, commissioner of industries was without jurisdiction to make rulings that accident arose in course of employment, and that it did not arise out of employment.
APPEAL from decision and order of commissioner of industries, Washington County. From holding that claimant was an employee of Nye Motor Company at time of injury, and that his employment was not purely casual, defendants appealed. The opinion states the case. Order vacated, and proceedings dismissed.
Deane C. Davis for the claimant.
An injury arises out of the employment when it occurs in the course of it and as a proximate result of it. Brown et al. v. Bristol Last Block Co., et al., 94 Vt. 123, 125.
When an injury is a natural and necessary incident or consequence of the employment, though not forseen and expected, it arises out of it. An injury is incidental to the employment when it belongs to or is connected with what the workman has to do to fulfill his contract of service. Brown et al. v. Bristol Last Block Co. et al., supra; Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303; Bryant v. Fissell, 84 N.J. Law, 72, 86 A. 458.
The claimant at time of injury was performing a duty which he owed defendant in operating the automobile, was at that time in the service of his employer, and employment entailed exposure to injury, hence his injury arose out of his employment. In re McNicol, 215 Mass. 497, 102 N.E. 697; Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320; Katz v. A. Kadans Co. et al., 232 N.Y. 420, 134 N.E. 330; Moran's Case, 234 Mass. 566, 125 N.E. 591.
The injury "followed as a natural incident" of claimant's operation of the automobile along the highway while showing same to prospective purchasers; and the exposure occasioned by the nature of the employment was to accidents and collisions with other automobiles; such causative danger being peculiar to, and incidental to, the character of the work; and the general doctrine relating to street accidents recognizes an exception in case of workmen whose employment requires them to be frequently on the street. Kneeland v. Parker, 100 Vt. 92; In re McNicol, supra; 28 R.C.L. 805, § 93; Zabriskie v. Erie R.R. Co., 86 N.J. Law, 266, 92 A. 385, L.R.A. 1916A, 315; Beaudry v. Watkins, 191 Mich. 445, 158 N.W. 16; Krause v. Swartwood, 218 N.W. 555.
The defendant motor company having required claimant to submit all proposed transactions to defendant for its approval as to allowances for old cars taken in trade, credit of prospect, and to pass on security offered in time payment transaction, retention of such control was entirely inconsistent with theory of independence allowed an independent contractor, and claimant occupied status of employee of defendant, rather than that of an independent contractor. Risenburg v. Western Mercantile Co., 2 Cal. I.A.C. Dec. 673; Travis v. Hobbs, Wall Co., 2 Cal. I.A.C. Dec. 506; Kelley v. Hoosac Lumber Co., 95 Vt. 50.
The work which claimant was required to perform and did perform for more than one year was regular, systematic, periodic, and certain, hence his employment should not be considered as merely casual. In re Gaynor, 217 Mass. 86, 104 N.E. 339; Eutaw Copper Co. v. Industrial Commission, 193 P. 24; In re Holman Creamery Assn. v. Industrial Commission, 167 Wis. 470, 167 N.W. 808; Armstrong v. Industrial Accident Commission, 36 Cal.App. 1, 171 P. 321; American Steel Foundries v. Industrial Building, 284 Ill. 99, 119 N.E. 902; King's Case, 220 Mass. 290, 107 N.E. 959.
Erwin M. Harvey for the defendants.
The agency which produced claimant's injury was another car which had no connection with claimant's duties, and their being no causal connection between conditions under which work was required to be performed and resulting injury, such injury did not arise out of the employment. Brown v. Bristol Last Block Co. et al., 94 Vt. 123; Kneeland v. Parker, 100 Vt. 92, 135 A. 8; In re McNicol, 215 Mass. 497.
The motor company had no control over the claimant's movements, methods, hours, or time and places of demonstrating automobiles, but simply could accept or reject the offer of credit for the old car taken in trade, and determine the degree of financial responsibility of the customer offered if he desired credit, and compensation was not fixed by time spent, or labor performed, but only by results obtained. The relations thus established were not those of employer and employee, but claimant was an independent contractor. Richards v. Consolidated Lighting Co., 90 Vt. 552; Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50; Morgan v. Gould, 96 Vt. 275.
If claimant was not an independent contractor, then his employment was casual, he not being engaged in any regular line of employment, and his employment being intermittent, and not regular. 28 R.C.L. 62.
Present: WATSON, C.J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.
The commissioner, on facts found and stated by him, held that claimant was an employee of the defendant Motor Company at the time of the accident, that his employment was not purely casual, and that the accident arose in the course of such employment, from which holdings the defendants appealed.
The commissioner further held, on the facts so found and stated by him, that such accident did not arise out of such employment, and denied compensation, from which the claimant appealed.
If claimant was not an employee of the Motor Company, but an independent contractor as claimed by defendants, or if his employment was purely casual, the commissioner was without jurisdiction, and any order made by him was void. Packett v. Moretown Creamery Co., 91 Vt. 97, 99 A. 638, L.R.A. 1918F, 173; Chamberlain v. Central Vermont Ry. Co., 100 Vt. 284, 137 A. 326. So we first consider these questions.
The material findings are these: The claimant began work for the Motor Company in April, 1925, under a parol contract by the terms of which he was to sell both new and used automobiles on a commission of 5 per cent. on sales of the former and 8 per cent. on sales of the latter. He was a stonecutter, and it was understood that he could work at his trade during the usual working hours, and that he would work under his arrangement with the Motor Company only "after hours," Sundays, and holidays. The Motor Company was to furnish the cars to be sold and gas and oil necessary for their demonstration. The claimant could show such cars to whoever he could interest, and could demonstrate them on any road he chose, and at any time which suited his own and his customers' convenience. He was required to submit all proposed transactions (except perhaps cash sales) to the Motor Company for its approval as to allowance for old cars taken in trade, the credit of prospects, and the security they offered on time contracts. The Motor Company exercised no control over claimant's "activities" other than such as related to the matters last mentioned. On June 13, 1926, "while so employed" he was demonstrating a car on a highway where there was a one-way bridge. As he approached this bridge he saw a car coming from the opposite direction and stopped on the right-hand side of the road to allow that car to cross the bridge first. It crossed the bridge at a rapid speed and collided with his car, causing the injuries for which compensation is sought.
On these findings it cannot be said that the commissioner erred in holding that claimant was an employee of the Motor Company. The master test in determining whether one who is performing work for another is a servant or an independent contractor is the right of the latter to control the work, to direct the means and methods by which it shall be done. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 113 A. 818; Bailey v. Troy Boston R.R. Co., 57 Vt. 252, 52 A.R. 129; Richards v. Consolidated Lighting Co., 90 Vt. 552, 99 A. 241. But it is said in the former case, and cases there cited, that it is the right to control the work that determines, actual interference being unnecessary. The Motor Company, as we have seen, had complete control respecting the terms of all sales, unless, perhaps, sales for cash. While it appears that it exercised no control over claimant's work in other particulars, it does not appear that it did not have the right to do so. Of course, if the contract was silent as to where claimant should demonstrate cars he offered for sale, he could do that wherever he saw fit unless and until the Motor Company directed otherwise; which it did not do. Such appears to have been the real situation here, at least the findings are fairly susceptible of that construction. Then, too, for aught that appears, the contract could be terminated at the pleasure of either party, a circumstance which tends to refute defendants' claim. On this issue the findings made a prima facie case of ordinary service, which defendants failed to overcome by counter findings necessary to support their contention. As to the burden of evidence on this issue see Kelley's Dependents v. Hoosac Lumber Co., supra, at page 54 of 95 Vt., 113 A. 818.
The second holding of the commissioner which is challenged by defendants' appeal was erroneous. Whether employment is "purely casual" within the meaning of our statute is to be determined by the contract for service. Chamberlain v. Central Vermont Ry. Co., supra. See also Gaynor's Case, 217 Mass. 86, 104 N.E. 339, L.R.A. 1916A, 363; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N.E. 207; Western Union Tel. Co. v. Hickman (C.C.A.), 248 Fed. 889; Callihan v. Montgomery, 272 Pa. 56, 115 A. 889. The word "casual" is in common use. Its ordinary meaning, according to the lexicographers, is something that comes without regularity and is occasional and incidental. It is said in Gaynor's Case, supra, that its meaning may be more clearly understood by referring to its antonyms which are "regularity," "systematic," "periodic," and "certain."
So far as appears, the contract before us did not require the claimant to work at any certain or regular time. It simply appears that what he did he would do after hours, Sundays, and holidays. This is all we know concerning the time or duration of his services. Whether he was to and did work certain hours each day, each week, or each month the record does not disclose. It does appear that so far as the demonstration of cars was concerned he could do that at his own and his customers' convenience; and the nature of the contract is such that, the contrary not appearing, it will be assumed that his other activities were subject to his own convenience. If so, his employment was purely casual, since it was not regular, periodic, or certain. If it was otherwise, it was incumbent on him, in the circumstances, to prove it, because the findings as they stand do not make a prima facie case of ordinary service, but show merely an opportunity for claimant to devote such of his spare time as he saw fit, with no obligation to so use any of it, to the sale of cars. It is the uncertainty and irregularity of claimant's service under this contract, as it appears, and not the fact that what he might do would be done outside the hours he worked at his trade, that characterizes the nature of his employment. Nor does the fact that the accident occurred more than a year after the contract was entered into change the situation, since there is no finding respecting the regularity of his services in the meantime. While it may be difficult in some instances to determine whether service is purely casual or otherwise, in order to entitle a claimant to any standing under our statute something more concerning the regularity and certainty of the service must appear than is disclosed in the instant case.
Since claimant's employment was purely casual, the commissioner was without jurisdiction to make the other rulings appealed from; therefore they are not considered.
Order vacated and proceedings dismissed with costs. Let the result be certified to the commissioner of industries.