St. Paul-Mercury Indemnity Co. v. Alexander ( 1951 )

Felton, J.,

dissenting. The claimant in this case was employed by Harris G. Self and operated one of Self’s trucks. Self paid him his wages, deducted Federal income taxes and social security payments. It is not necessary to decide what was the status of truck drivers obtained by Self who owned their own trucks and who were paid directly by Florence Construction Company, as the claimant was not such a person. There was no express contract between Self and Florence Construction Company definitely spelling out the exact rights and duties of the parties, so the answer to the question presented lies in what was actually done under the contract. What the parties thought the contract was, is of no relevancy. It is the legal consequence attaching that matters and not what the parties concluded. Self thought he was an independent contractor and that he 'had workmen’s compensation insurance. Florence thought Self was an employee and insured itself against damage caused by Self’s trucks. If we look to such terms of the contract as there were -and see what was actually done thereunder, we should conclude that Self was an independent contractor insofar as the operation with his own trucks was .concerned. The evidence quoted in the opinion as to the court’s conclusions as to Florence’s right to discharge unsatisfactory employees and drunk employees does not to my mind authorize the conclusion reached. In the first place, the statements were simply conclusions of the witnesses. There is no testimony in the record as I interpret it' to the effect that Florence had the right to discharge a man who drove one of Self’s trucks. Self’s testimony shows that in actual cases of drunkenness Florence did no more than advise what should be done. Florence’s engineer simply testified that if a driver got too drunk or disorderly, Florence could run him off the job. Any proprietor or principal contractor could do that without becoming the employer of the person so disciplined. I think that under the facts 'in the record Self was an independent contractor and the claimant’s employer. The majority opinion- contains several arguments why the Board’s finding was correct. Several of these arguments to my mind are not valid, logical or relevant. The fact -that a different situation might have existed as to men who owned their own trucks has no bearing on the status of the drivers of Self’s own trucks. The same is true as to the fact that the time of work of the claimant and others similarly situated coincided with the working time of Florence’s employees who loaded the trucks and directed the placing of the material. The control of time, as contemplated by law, is not the control of time stipulated by the contract between the principal contractor and the sub-independent contractor. In this case it was necessarily understood between Florence and Self that Self could only get his trucks loaded when Florence’s men were working and that Self’s employees would be directed as to where to dump the loads.