Norton v. Day Coal Co. , 192 Iowa 160 ( 1920 )

Salinger, J.

1. Master and servant : Workmen’s Compensation Act: findings by commission. I. The statute not only fails to create a liability in favor of contractors, but declares that no contractor engaging to give services is an “employee.” And the terms “contractor” or “independent contractor” do, despite liberal interpretation of the act, retain tlieir common-law meaning, and are still to be given the meaning that courts have always given them. Storm v. Thompson, 185 Iowa 309; Pace v. Appanoose County, 184 Iowa 498; Code Supplement, 1913, Section 2477-m16.

II. The commissioner found against' liability, on the ground that claimant was a contractor.

2. Master and SERVANT : Workmen’s Compensation Act: contractor (?) or employee (?) How far can court review, in the district court or here, of such findings, go ?

Speaking through Mr. Justice Weaver, we said, in Fischer v. Priebe & Co., 178 Iowa 512:

“It was not within the authority of the court to review or reverse or modify the award. Its function in the matter was simply to receive the award certified to it, and ‘render a decree in accordance therewith and notify the parties.’ ”

We need not go so far as this, and in Griffith v. Cole Bros., 183 Iowa 415, at 418, and in Pierce v. Bekins V. & S. Co., 185 Iowa 1346, we declined to do so. We held, in Pace v. Appanoose County, 184 Iowa 498, that:

“Courts may not interfere with the findings of fact made by the industrial commissioner, when these are supported by the evidence, even though it may be thought there be error.”

We said in the same ca^e that his finding of fact on whether there was an employment is conclusive if the evidence be in conflict, or be open to the drawing of different inferences. In Pierce v. Bekins V. & S. Co., 185 Iowa 1346, we declared:

“The effect of the Griffith case [183 Iowa 415] is that we cannot review a finding of fact unless the transcript makes it appear, as matter of law, that such finding is not sustained by or is contrary to the evidence, and say in that connection that ‘the court may not go into a general fact controversy.’ ”

On application of these, and of statute provision that we shall not have fact questions submitted to us, the sole question now is whether we may say that there was no conflict, no room for the drawing of different inferences', and that, therefore, as matter of law, the finding of the commissioner is not sustained by the competent evidence.

III. One line of evidence is this: The plaintiff’s general business was teaming, which he pursued with his own team. For the most of the year, he hauled for the city and for material-men, thus obtaining steadier work and better pay than defendant could give him. He hauled coal for defendant only when the demand for coal was so acute that there was more hauling than the regular employees' of the defendant could handle. He admits he earned his livelihood by using his own team, and working for different people with it. While he generally obtained coal hauling when he asked defendant for it, and though, during some five weeks prior to his injury, he did haul for defendant, he was at no time sure of obtaining it, knew at no time how much hauling he could get to do, or how long it would last. All hauling was paid for by the load, and settlement made weekly. He could apply for this work when he pleased, and abandon it at any moment. He did the hauling with his own team. He .was at-liberty to decline any job of hauling for defendant, and hauled coal for its competitors without subjecting himself to a refusal by defendant on later application to haul coal for-it. It follows defendant had no right to and did not exercise any control over when plaintiff should dr should not work for it, and its only power was to refuse him work, which, as it happens, was a- power it never exercised. The engagement between the parties was that, if plaintiff applied for any hauling, and defendant had some, plaintiff would be permitted to haul. If there was no hauling when he applied, he would be advised when a job did turn up, and be permitted to haul. When there was no more hauling available, defendant would advise plaintiff of that fact, whereupon he would depart. Defendant was not concerned in whether Norton loaded or unloaded the wagon himself, or with help hired by him. If he encountered any difficulty, his was the task of overcoming it. If he needed help, it was for him to hire and pay for it; and lie did hire help on more than one occasion. He was told where to get coal to load,. and to whom to deliver it. On delivery, he was to obtain a receipt, and this would be the basis of settling how.much was due him.

He was injured while engaged with his own team in delivering coal that he was hauling for defendant. While walking beside the wagon, it passed over his foot. He was alone, and was handling his own team.

In effect, his so-called employment did not differ from employing a drayman, as to whom the cases stress the fact that they are not employees, because, owing to the indefinite character and amount of their work, the right to discharge is never created. Tuttle v. Embury-Martin Lbr. Co., 192 Mich. 385 (158 N. W. 879). In effect, his status does not differ from the one of a passenger in a taxi. The general consensus of authority is that the taxi driver is not the employee of the passenger, though the latter can direct him when to start, what route to travel, and as to where the passenger is to be discharged. See Ash v. Century Lbr. Co., 153 Iowa 523; Cram v. City of Des Moines, 185 Iowa 1292; Stewart v. California Impr. Co., 131 Cal. 125 (63 Pac. 177) ; Frerker v. Nicholson, 41 Colo. 12 (92 Pac. 224); and Western Indem. Co. v. Pillsbury, 172 Cal. 807 (159 Pac. 721).

In Ash v. Century Lbr. Co., 153 Iowa 523, we held there was no “employment.” There, the driver teamed, on the whole, more for others than for defendant. He was engaged in an occupation other than serving defendant, except at times when his independent business of teaming was less profitable than teaming for defendant during the rush season. And this was held, though the driver was paid even when the foreman of defendant, on occasion, directed this driver to haul for others. We held, in Storm v. Thompson, 185 Iowa 309, that the claimant was engaged in an independent business which he styles “tree work,” and he had supplied himself with the needed tools. In denying him the relationship of an employee, and holding that he was a contractor, we said that, where there is no right to regulate the time for performance, except in so far as the law implies a duty to complete within a reasonable period, there is no employment, because there is control over nothing except such as is addressed to the general result. And see Perham v. American Roof Co., 193 Mich. 221 (159 N. W. 140).

IV. Norton is not an employee, within the act, because there was no right to discharge him, and the right to discharge for misconduct or disobedience is an essential test. Pace v. Appanoose County, 184 Iowa 498; Ash v. Century Lbr. Co., 153 Iowa 523; Pillsbury’s case, 172 Cal. 807 (159 Pac. 721); Stewart v. California Impr. Co., 131 Cal. 125 (63 Pac. 177) ; Quarman v. Bennett, 6 M. & W. 497; Tuttle v. Embury-Martin Lbr. Co., 192 Mich. 385 (158 N. W. 879); Carleton v. Foundry & M. P. Co., 199 Mich. 148 (165 N. W. 816, at 817); Pioneer F. C. Co. v. Hansen, 176 Ill. 100 (52 N. E. 17); Butler v. Townsend, 126 N. Y. 105 (26 N. E. 1017); Litts v. Risley Lbr. Co., 224 N. Y. 321 (120 N. E. 730). There was no right to discharge, because, as said, claimant had virtually the status of a drayman. Plaintiff: could not tell, when he came, whether he would gét any work. He was not obliged to accept any that was offered. He was at all times at liberty to haul for others, rather than defendant. The most that could be done was to refrain from giving him coal to deliver. The only power the defendant had was to elect whether he should be given work, and how long it should continue. There was the right to interrupt or terminate the contract, but not to discharge. Pace v. Appanoose County, 184 Iowa 498. We said, in Ash v. Century Lbr. Co., 153 Iowa 523:

“While the defendant at any time might have interrupted the employment of the man and team in hauling, it was without authority to discharge Cruse as driver of Mrs. Wright’s team, or to substitute another in his stead.”

'Certainly, Norton was the owner of the team with which he did the hauling, and as certainly defendant could not substitute another to drive this team, without the consent of Norton.

V. One can so engage himself and his team to another as that the latter shall be in control of both. But he does not become a servant, merely because he engages himself and his own team to work for another. To make the relationship, the master must be in control of both man and team. Ash v. Century Lbr. Co., 153 Iowa 523; Pace v. Appanoose County, 184 Iowa 498; Morris v. Trudo, 83 Vt. 44 (74 Atl. 387); Huff v. Ford, 126 Mass. 24; Driscoll v. Towle, 181 Mass. 416 (63 N. E. 922).

Defendant was given no right whatever to control the management and care of the team, and it never attempted to exercise any control on that head. The care and management remained entirely with Norton.

YI. The relationship of master and servant does not exist, unless there be the right to exercise control over methods and detail, — to direct how the result is to be obtained. The power to direct must go beyond telling what is to be done, — to telling “how it is to be done.” Zeitlow v. Smock, 65 Ind. App. 643 (117 N. E. 665); Prest-O-Lite Co. v. Skeel, 182 Ind. 593. The only right defendant had to exercise control over methods and detail, and the only right on that head that was exercised, was to direct plaintiff where to get his coal, and the kind and the amoxurt; that he should then drive on the scale and weigh, and then scale or trim the load or add to it, as defendant might direct; to direct to whom delivery should be made, and that a receipt be obtained, as the basis for giving proper credit for the haul. There was no right to exercise control, and none was exercised, over the speed with which delivery should be 'made or the route that should be taken in making delivery. There was less control or right to control in the case before us than there was in the many cases wherein it was held that it was not sufficient control over method and detail to constitute an employment. Among them are Pace v. Appanoose County, 184 Iowa 498 ; Stewart v. California Impr. Co., 131 Cal. 125 (63 Pac. 177); Tuttle v. Embury-Martin Lbr. Co., 192 Mich. 385 (158 N. W. 879) ; Pillsbury’s case, 172 Cal. 807 (159 Pac. 721); See v. Leidecker, 152 Ky. 724 (154 S. W. 10); Zeitlow v. Smock, 65 Ind. App. 643 (117 N. E. 665) ; Ash v. Century Lbr. Co., 153 Iowa 523.

In Smith v. State Workmen’s Ins. Fund, 262 Pa. 286 (105 Atl. 90), there was the right to exercise much more control over details than exists in this case, and yet it was held that the relation of master and servant had not been created. There was the right to direct that the transferring of freight to be done by claimant should be done in a good and workmanlike manner; that leather cars should be by him loaded in accordance with instructions from a named tanning company; and he was to load or unload each standard gauge car within the time limit that would avoid demurrage charges.

In See v. Leidecker, 152 Ky. 724 (154 S. W. 10), adopted in Pace v. Appanoose County, 184 Iowa 498, it was held the relationship did not exist, though the right given and exercised, to direct as to details, was vastly more plenary than exists or was exercised in the case at bar. And the holding of the Leideeker case is fairly supported in Zeitlow v. Smock, 65 Ind. App. 643 (117 N. E. 665).

In Ash v. Century Lbr. Co., 153 Iowa 523, the foreman of defendant gave written orders to the driver for a load of lumber, and directed him where to take it; and he directed, too, that, on delivery, the driver would obtain a ticket signed by the recipient, and return it to the office. There, the foreman “used his judgment which team shall take this order or that order,” and “the directions are put there on the paper where to take it." Sometimes the foreman would “direct them which road, if he knew the best place to go.” We held there was no such right to direct and control as to methods and details as would make the driver the employee of the defendant. And see Tuttle v. Embury-Martin Lbr. Co., 192 Mich. 385 (158 N. W. 879).

6-a

It is elementary doctrine, and it would fill many pages to cite the support it has, that one is not an employee if he may choose his own method of working,—the mode and manner of doing the work. We select Smith v. State Workmen’s Ins. Fund, 262 Pa. 286 (105 Atl. 90); Pace v. Appanoose County, 184 Iowa 498; Ash v. Century Lbr. Co., 153 Iowa 523; Butler v. Townsend, 126 N. Y. 105 (26 N. E. 1017). It has been summed by the statement that it is immaterial that there be power to prescribe what is to be done, unless it includes the power to say “how it is to be done.” Zeitlow v. Smock, 65 Ind. App. 643 (117 N. E. 665) ; Prest-O-Lite Co. v. Skeel, 182 Ind. 593 (106 N. E. 365).

It is not enough that there be power to see to it that the work is done to the satisfaction of the one who gives it. This power is control over ultimate results, and not over methods, means, and details. Humpton v. Unterkircher, 97 Iowa 509; Prest-O-Lite Co. v. Skeel, 182 Ind. 593 (106 N. E. 365) ; Zeitlow v. Smock, 65 Ind. App. 643 (117 N. E. 665). It is not direction looking to the final result, but as to means, that is controlling. We select: Ash v. Century Lbr. Co., 153 Iowa 523, at 532; Pace v. Appanoose County, 184 Iowa 498; Casement v. Brown, 148 U. S. 615 (13 Sup. Ct. Rep. 672). It was said in Storm v. Thompson, 185 Iowa 309, to be the consensus of the authorities that there is no employee unless the master may. select the means by which the result is to be accomplished. And see Overhouser v. American Cereal Co., 118 Iowa 417; Francis v. Johnson, 127 Iowa 391. There is an independent contractorship where the manner of operating the engine is not specified, and there is no control over the “details” of the work, as distinguished from the result, — the manner of doing the work. There must be the right to dictate the details of the methods to be employed. Shearman & Redfield on Negligence (6th Ed.), Section 166. And see Leidecker’s case, 152 Ky. 724 (154 S. W. 10), also approved in the Pace case; 26 Cyc. 970; Storm v. Thompson, 185 Iowa 309; Pace v. Appanoose County, 184 Iowa 498; Litts v. Risley Lbr. Co., 224 N. Y. 321 (120 N. E. 730).

The mere making of suggestions as to the methods of work to be pursued will not establish the relationship of master and servant, even though the suggestion be as to details or as to the co-operation necessary to bring about the larger general result. Carleton v. Foundry & M. P. Co., 199 Mich. 148 (165 N. W. 816) ; Casement v. Brown, 148 U. S. 615 (13 Sup. Ct. Rep. 672).

6-b

In Ash v. Century Lbr. Co., 153 Iowa 523, it is held to be significant on, but not conclusive of, whether there was the relationship of employer and employee that the latter is paid by the day. Norton was paid by the load. But even in cases where the payment was a fixed sum per day, it was held that the status of independent contractor has not been changed for that of a servant. We select: Chisholm v. Walker & Co., 2 B. W. C. C. 261; Ryan v. County Council, 49 Ir. L. T. 1; Litts v. Risley Lbr. Co., 224 N. Y. 321 (120 N. E. 730). That was the holding in the Pace case, 184 Iowa 498, where claimant was to be paid $14 a day for work by himself or a man and a team, with use of claimant’s engine, and a day was to be 10 hours; and in Pillsbury’s case, 172 Cal. 807 (159 Pac. 721), where the wagon was to be used 8 hours a day.

VII. Some of the cases have much similarity to this case as a whole, but exhibit less reason for finding against employment than appears in this case.

The Pace ease approves Busse v. Brugger, 3 Annual Rep. (1914) Wisconsin Industrial Com. 78. There, the applicants owned an ensilage-cutting outfit, an ensilage-cutter machine, and a silo-filling outfit. They engaged to farmers to cut and fill, and gave' their personal services, as far as necessary to operate the machinery, and did so at a stated sum per hour for the time actually consumed in filling the silo. The farmer furnished the gasoline only. It was held that these men were independent contractors. It was emphasized that they had the right to complete the job; that the farmer had. reserved no control, and could discharge neither of the applicants; and that nothing could be required of the applicants, except, in a general way, to run the machinery and so feed the corn and so work as that the general result desired would be obtained. In Chisholm v. Walker & Co., 2 B. W. C. C. 261, the applicant owned a horse, and engaged to drag logs of timber for respondent at 8 shillings a day. He was not required to give his personal services. Lord Justice Clerk said:

"On the facts stated here, I cannot find anything to indicate that this man was a servant, employed by a master and remunerated by wages: that is, at so much per day or per hour or per piece. The present ease is a case in which a man who has a horse of his own goes to a firm of timber merchants; they say that they want logs removed from one place to another; he says, ‘I have a horse, I shall bring it and work any day you wash me to do so, and for that you will pay 8s. a day.’ There is nothing there of the nature of wages. It would have been the same thing if he had brought 20 horses to do the work, instead of one. The contract was that he should get the work done. It was not a contract that lie should do the work personally, but that he should do it in the only way in which it could be done, by having somebody to lead the horse. That is not a contract of service.”

Ryan v. County Council, 49 Ir. L. T. 1, approved in the Pace ease, has quite a similarity to the case at bar. Deceased owned a horse and cart, and did a carting business. For several years, he had hauled stones for the county council; though he did not work continuously, but for a day or a part of a day, as he wished, being under no obligation to do the work at any particular time or in any particular manner or to do any particular amount on any one day. He was not controlled in the work by the council, except that their surveyor told him whether and where he desired the stones to be hauled. Ryan was kicked by his horse while harnessing it, preparatory to going to work to haul the stones; and, relying largely on Chisholm v. Walker & Co., 2 B. W. C. C. 261, the court held Ryan to be an independent contractor.

VIII. In some cases upon which we have drawn, the claimant was furnished to defendant by a third person, or the one injured was a third person, or claimant did no.t work in person; and in some of these cases, two or all three of these conditions were present. We think that the presence of one or all of these conditions exhibits a distinction which works no difference.

It can make no difference that, additional to furnishing the team, Norton worked with it himself. In Western Indent. Co. v. Pillsbury, 172 Cal. 807 (159 Pac. 721), Stevens was held to be an independent contractor, where he, in addition to furnishing teams’ and drivers, drove, himself. In the Pace case, 184 Iowa 498, Pace was held to be an independent contractor, though he had the right to have someone other than himself operate his engine or drive his team, or to do this operating and driving, himself. And we said that, under such circumstances, the authorities are all but conclusive that Pace should be deemed an independent contractor, rather than the employee of the county. The case of Chisholm v. Walker & Co., 2 B. W. C. C. 261, declares that he is not a servant, though he do work, if he is to furnish a horse as one means of doing the work. In Ash v. Century Lbr. Co., 153 Iowa 523, this from Quarman v. Bennett, 6 M. & W. 497, is approved:

“And whether such servant has been appointed by the master directly, or intermediately though the intervention of an agent authorized by him to appoint servants for him, can make no difference."

8-a

Had a third person furnished the team, and Norton as its driver, it would scarcely be questioned that, under the record in this case, defendant would not have been liable, had the negligence of Norton injured someone other than Norton. See Ash v. Century Lbr. Co., 153 Iowa 523; Quarman v. Bennett, 6 M. & W. 497, as approvingly analyzed in the Ash case; Delory v. Blodgett, 185 Mass. 126 (69 N. E. 1078), approved in the Ash case; the dissent in Howard v. Ludwig, 171 N. Y. 507 (64 N. E. 172), to which the Ash case inclines, as against the majority opinion; Morris v. Trudo, 83 Vt. 44 (74 Atl. 387); Stewart v. California Impr. Co., 131 Cal. 125 (63 Pac. 177).

Now, the great weight of authority holds that one test of whether one is a master is whether he would be liable to third persons for misconduct of the alleged servant. See Holbrook v. Olympia Hotel Co., 200 Mich. 597 (166 N. W. 876). Why is not that a test here ? If someone other than Norton had furnished Norton and a team to defendant, and in hauling coal had injured some stranger, it would be conceded defendant is not liable. If that immunity rests on the fact that Norton and his team were furnished by someone other than Norton, rather than by Norton, and on the fact that he did the injuring, instead of being injured, then this rule is not a test in this case. But the basis of the immunity is not that the driver did not furnish himself and the team, nor that the driver injured, instead of being injured. Such furnishing by a third person is but a circumstance tending to prove the ultimate defense that defendant had no right to exercise control. But such facts are not the only evidence of that ultimate fact. Other facts may prove that defendant lacked control over one who owned the team and did the driving. The test is not, who did the actual hauling or who owned the team, but is whether defendant had or had not control of the methods and details of doing the work. It follows that, if there was no right to control methods and details, it is quite immaterial that Norton, rather than a third person, owned the team with which Norton worked, or that, though he did the work himself, he might have substituted another for it, or that he injured himself, rather than a third person. With the essential right to control details and methods lacking, with the power of managing his own team permitted to remain in him, then, though he did the driving himself, and injured himself, instead of a third person, that cannot make, him an employee.

It is our judgment that there is sufficient competent evidence to sustain the finding of the industrial commissioner. It follows that the district court erred in annulling his order, and that the judgment of that court must be — Reversed.

Ladd, Evans, Preston, Stevens, and Arthur, JJ., concur in result, on ground stated in last paragraph.