Cromwell General Contractor, Inc. v. Lytle , 222 Tenn. 633 ( 1969 )

Mr. Justice Humphreys

(dissenting).

I respectfully dissent in this case, because it is evident upon a consideration of its effect that it overrules much of the holding of this Court in Brademeyer v. Chickasaw Building Co. et al (1950), 190 Tenn. 239, 229 S.W.2d 323. While the opinion does not say this in so many words, and an effort is made to distinguish the cases, this is the effect of it. And because Brademeyer was sound in all of its propositions, I do not think we should depart from its holdings.

To illustrate, in the present case it is said the record does not show that the contractor controlled Lytle in the manner and means by which he accomplished his work, and from this the assumption is drawn that the vital element of right to control which characterizes a contract as one of employment rather than independent contractor is missing.

The same situation existed in Brademeyer. The record was silent with respect to control hnt this Court held it wonld assume the right to control. This holding was predicated on the proposition that, in the absence of a positive showing there was relinquishment of the right to control, the assumption would be made the right existed. This holding is consistent with the rule that the presumption is in favor of the employee relationship. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W. 2d 860; Weeks v. McConnell, 196 Tenn. 110, 264 S.W.2d 573.

So in this very vital area the present opinion departs radically from the Brademeyer holding.

In Brademeyer, the injured employee was paid at an agreed price per window washed. In this case the primary contract was based on the per thousand brick washed. In Brademeyer we held payment for piecework was not evidence of an independent contract. In this case we hold that it is.

In this case in support of the proposition of independent contractor, reference is made to the fact that Lytle hired and paid employees to help him with the work. The same situation existed in Brademeyer and yet it was not thought to have the effect here given it.

However, my major concern with the majority opinion is that in holding that even ordinary, manual, unskilled labor, performed as a necessary part of the business of the employer, can be the subject of an independent contract, we go against the overriding, overall purpose and intent of the Workmen’s Compensation Law to place upon the employer of such labor the burden of looking after those who are injured doing his work, rather than to cast this burden on society.

In other words, if plain, ordinary, unskilled hand labor, involving the simplest tools, such as a scrub brush or a wire brush, in the performance of an integral, necessary part of the employer’s business, can be made the subject of an independent contract, then there is no work relationship which is protected by the Workmen’s Compensation Law from the effect of this device.

The writer recognizes that there must be room for the making of genuine independent contracts in which the party contracting to work does not come under the Workmen’s Compensation Act. But this Court, as in Brade-meyer, should reject the independent contractor defense in cases involving ordinary, unskilled manual labor, involving nothing but the physical exertion of the laborer and the simplest of tools. Such cases are clearly under the letter and purpose and intent of the statute. Since, in my judgment, the opinion in this case helps to make it easier to thwart this expressed public policy, and in so doing goes against our holding in Brademeyer, I cannot agree.

I am also in disagreement with the out-of-hand rejection of the “relative nature of the work test” in determining whether the workman is a contractor or an employee. This test is logical and reasonable. Its importance is discussed in Larson’s Workmen’s Compensation Law, sec. 43.50-43.54, and on authority of a number of cases Larson concludes as follows:

“If, then, control of the details of the work should not be the most relevant factor for compensation purposes, which of the listed factors should be?

The answer, it is submitted, should be this: the nature of the claimant’s work in relation to the regular business of the employer.” See. 43.50 (emphasis supplied).

I agree with this as sound law, because its purpose is to serve the policy served by our Workmen’s Compensation Law; that of making the employer liable for the injuries suffered by those who regularly do his work from day to day as needed.

Instead of disposing, with a jolly jeer, of the “suggestion” that a common laborer doing a necessary job on a regular basis producing the product the employer is in business to produce can hardly ever be an independent contractor, this Court should adhere to it as it did in brave Brademeyer.