American Casualty Co. v. Adams ( 1934 )

ON MOTION ROE REHEARING.

MacIntyre, J.

Counsel for the insurance carrier and the employer in this case earnestly urge, in their motion for a rehearing, filed in this court, that the evidence adduced before the single director in this case demanded a finding by that official that the work being performed by the decedent, during the performance of which he met his death, was being done under contract, and that the relation between the employer and decedent was that of employer and independent contractor and not that of employer and servant. Out of deference to learned counsel, we have again closely scrutinized the evidence in the record in this case, and under that broad rule that where there is any competent evidence to support the finding of the single director on a matter of fact, which finding has been approved by the full board and by the superior court on appeal, this court will not disturb tbe same, we do not feel constrained to change our original decision in this case. The decedent dealt solely with the vice-president of the employer, a corporation, in undertaking to perform the work during the performance of which he was killed; and that officer swore positively that the work was undertaken by the decedent by the hour and that he was carried on the payroll of the employer like all other employees. He further swore positively that the work was not undertaken by the decedent on contract, because of the peculiar nature of the work, it being more advantageous to the employer to hire the decedent to perform this work by the hour like any other employee than for the decedent to undertake it by the job under contract, that is, it would cost less for it to be performed by the deceased as an employee, paying him for his time by the hour. We do not think that the evidence of the officer of the employer in this respect, and in regard to the fact that he considered that the employer had the-right to terminate the employment at any time and discharge the decedent, was wholly a conclusion and worthless as evidence, even though the evidence showed that the employer left it to the employee to carry out his work in accordance with specifications furnished by the City of LaG-range, it being necessary that the particular work be performed in a manner satisfactory to the authorities of said city having charge of its electrical department.

Rehearing denied.

Broyles, G. J., and Guerry, J., concur.