Brademeyer v. Chickasaw Bldg. Co.

Mr. Justice Tomlinson

delivered the opinion of the Court.

During the course of washing windows in the office building of Chickasaw Building Company in April 1949, Boy H. Brademeyer fell to the street and was killed. His widow, Mrs. Ethel B. Brademeyer, brought this suit to recover workmen’s compensation for the benefit, of herself and the dependent children of the deceased. It was the finding and judgment- of the trial court that (1) the deceased was working as an independent contractor and (2) his work was casual. 'Hence, that the case did not fall within the Workmen’s Compensation Law. Code, Section 6851 et seq.

This is the appeal of Mrs. Brademeyer from that judgment. It is her insistence that the law applicable to the undisputed evidence establishes it as a' fact that her husband was an employee within the meaning of the Workmen’s Compensation Act rather than an independent contractor, and that the work was not casual.

Eliminating unnecessary details, the facts are that Chickasaw Building Company owned and operated the building involved as an office building for rent of offices to the public. Janitor and like services, including the washing of the nine hundred and sixty windows in the building, were services furnished the tenants. The employees at the building, other than the officers and clerical force, were under the supervision and control of a superintendent of the building.

Until sometime in 1945 the window washing was done by one of the janitors. His employment was terminated at that time for some reason, and the work of cleaning the windows was then taken over by Brademeyer, who advertised himself as a window cleaner. At the time of his death, he performed this service for about thirty business buildings and residences.

The understanding had between Chickasaw Building Company and Brademeyer was that he was to clean the windows once every two months, and was to receive a compensation of fifteen (15c) cents per window. He furnished the cleaning equipment. This was a water bucket, brush, squeegie and sponge. The Company owned a safety belt, but be responded to its suggestion tbat be use tbis belt with tbe statement tbat be preferred bis bands. He was suffering from rheumatism on tbe day of bis death, but declined tbe suggestion of tbe building engineer tbat be forego working tbat day.

Nothing was said between tbe parties as to whether Chickasaw relinquished tbe rights to control tbe method of cleaning tbe windows. It did not in fact exercise such control. However, there is no evidence of dissatisfaction with bis services or bis manner of performance. To tbe contrary, these seemed to have been satisfactory to Chickasaw.

Brademeyer came and went as be pleased, started cleaning operations when be pleased, and skipped such days during the cleaning period as suited bis convenience. On isolated occasions be was requested to clean tbe windows in a particular office at a particular time, so as to be ready for a new tenant. Sometimes be responded, and sometimes be did not.

His son, at tbe age of sixteen, began to help him, and so continued for tbe two remaining years of Brade-meyer’s life. On perhaps a few occasions Brademeyer procured tbe help of some one else. He personally paid these helpers. They were procured without consulting Chickasaw, and Chickasaw made no objection to such help.

Brademeyer’s name did not appear on tbe books of tbe Company where tbe names of tbe employees were recorded. It did appear on those books in tbe miscellaneous building account. A list of tbe employees was furnished by Chickasaw Building Company for tbe city directory. Brademeyer’s name was not on tbat list.

The Company paid Federal Social Security Tax on Brademeyer, one-h.alf thereof being paid out of his earnings. When the management of the building was placed under a new superintendent in the fall of 1948 a new bookkeeper was installed in January following. When in February Brademeyer presented her with a bill for some windows that he had washed she discovered the fact that Social Security Tax was being paid on his earnings. She questioned him with reference to the propriety of this and he said that he “wanted it that way”. She referred the matter to the superintendent. He directed her to let it go on that way for a while as it did not amount to much. No Social Security Tax was paid on Brademeyer’s son or any other helper he might have had, it being paid only on Brademeyer and computed on the total amount paid him. That was the situation with reference to this tax at the time of Brademeyer’s death.

The Company deducted the Federal Income withholding tax from Brademeyer’s earnings whenever those earnings were more than the exemption. The amount withheld was always small, and nothing had been withheld during 1949 because the amount earned was less than the exemption.

Workmen’s compensation insurance was carried on Brademeyer, the insurer being Maryland Casualty Company, one of the defendants in error- This is explained without contradiction by the defendants in error as being the result of the method pursued in ascertaining the amount of the premium to be paid for the policy carried on the employees of Chickasaw Building Company. In the payment of the Social Security Tax, Chickasaw enumerated on its report to the Government the names of those oh which it was paying the tax and the earnings on which, the tax was paid as to each of those persons. Brademeyer’s name appeared on that report. The practice of the Maryland Casualty Company was to nse the Social Security list prepared by Chickasaw in computing the amount of the premium to he charged for the insurance it was carrying. In this way, it resulted that workmen’s compensation insurance was carried on Brade-meyer.

The insistence made in behalf of Mrs. Brade-meyer is that the payment of the Federal Social Security Tax on Mr. Brademeyer and the fact that workmen’s compensation insurance was carried upon him is conclusive evidence, as a matter of law, that Mr. Brademeyer was an employee of Chickasaw within the meaning of the Workmen’s Compensation Act. In support of this insistence reference is made to Employers’ Liability Assur. Corp. et al. v. Warren, 172 Tenn. 403, 112 S. W. (2d) 837; Carter v. Hodges, 175 Tenn. 96, 132 S. W. (2d) 211; and McDonald v. Dunn Construction Co., 182 Tenn. 213, 185 S. W. (2d) 517. When the holding in each of those cases is analyzed, and there is taken into consideration the reliance of the last two mentioned of these cases upon what was mistakenly said in Carter v. Hodges to have been the holding in Employers’ Liability Assur. Corp. v. Warren, it is to be seriously doubted that these cases conclusively support this insistence made in behalf of Mrs. Brademeyer. However, the carrying of such compensation insurance on Mr. Brademeyer, the payment of the Federal Social Security Tax on his employment, and the withholding from his earnings of an income tax amount to at least some evidence that he occupied the status of an employee rather than that of an independent contractor.

The contract in the instant case was oral. The controlling facts are undisputed and clear. Therefore, whether the status of Brademeyer to Chickasaw was that of an employee within the meaning of the Workmen’s Compensation Act or that of an independent contractor is a question of law. Mayberry v. Bon Air Chemical Company, 160 Tenn. 459, 465, 26 S. W. (2d) 148.

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that works Powell v. Virginia Construction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep, 925; Odom v. Sandford & Treadway, 156 Tenn. 202, 208, 299 S. W. 1045. It is not a question of whether the right was exercised. The question is whether the right existed. Odom v. Sandford & Treadway, supra; Sledge v. Hunt, 157 Tenn. 606-610, 12 S. W. (2d) 529.

It is clear from this record that Chickasaw had the right to discharge Brademeyer at any time it so elected. In the case of Odom v. Sandford & Treadway, supra, this Court held that: “The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show the subser-viency of the employee. Indeed, it has been said that no single fact is more conclusive, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself.” 156 Tenn. at page 210, 299 S. W. at page 1047.

The undisputed proof is that nothing was said between Chickasaw and Brademeyer as to the right of control. It follows, therefore, that Chickasaw did not relinquish that right. So, the situation established by the undisputed evidence is that Chickasaw (1) had the unrestricted right to terminate the services of Brademeyer at any time, and (2) did not relinquish its right of control. Those two controlling elements existed in the case of Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S. W. (2d) 860. Based upon those facts, this Court held: “It appears to the court, therefore, that the contract of employment was one by which the employer simply agreed to pay Frost for hauling the lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was to be done. While -working under such a contract, Frost was an employee and not an independent contractor, insofar as the' application of the Compensation Law to the contract of employment is concerned.” 158 Tenn. at page 21, 11 S. W. (2d) at page 861.

Under the authority of the holding in the cases to which reference has just been made, it is necessary to conclude that Bradmeyer was an employee of Chickasaw, and not an independent contractor, within the meaning of the compensation law.

On principle the same conclusion necessarily follows. The fact that Chickasaw had the right to discharge Brademeyer at any time with or without cause and the fact that Chickasaw did not relinquish its right of control of the manner in which Brademeyer was to do this work are facts, each of which is entirely repugnant to the definition of an independent contractor.

In concluding discussion of this phase of the case, and because some emphasis, at least in the proof, has been placed upon the matter, it is appropriate to observe that the necessary conclusion that Brademeyer’s status was that of an employee rather than that of an independent contractor is a conclusion which is not inconsistent with the fact that Brademeyer was paid by the piece, Phillips v. Tennessee Eastman Corp., 160 Tenn., 538, 543, 26 S. W. (2d) 1051, nor with the fact that he paid from his own earnings his son or some one else at times to help him do this work for which he was paid by the piece. Finley v. Keisling, 151 Tenn. 464, 474, 270 S. W. 629.

The Workmen’s Compensation Act, Code, Section 6856 (b) provides that the Act shall not apply to “any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession, or occupation of the employer”. The trial judge, under the authority of Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S. W. (2d) 198, held that Brademeyer’s employment 'at the time of his accident was casual. Hence, that his case did not come within the Act. His widow assigns this as error.

In Gibbons v. Roller Estates, supra, the business of the defendant was the operation of an office building. It was having some of these offices repainted on the occasion in question. Young Gibbons was employed to assist in that work, and while doing so was accidentally killed. It was held that the repainting of some of the offices was outside the usual course of the business .of the employer in operating an office building; hence, that the work was casual. It was likened unto the building of a garage or other repair or permanent improvement work. In our opinion, the case is not ip point in the instant case. Window washing is not something in the nature of a repair or permanent improvement.

In the instant case the cleaning of the windows in each and every office was as much a part of the regular service rendered by Chickasaw to its tenants as was the sweeping and otherwise cleaning of the offices. The only possible difference between the two services is that in the usual course of this business it was necessary to sweep the floors, etc., once every twenty-four hours, whereas, it was necessary to wash the windows once every sixty days. This difference in the length of time between services can make no difference in principle. The one service was as regularly rendered as was the other. Both were in the usual course of the regular services rendered to and expected by the tenants. Each, therefore, comes within the very language of the statute. In Gibbons v. Roller Estates it was observed that an employee comes within the statute “is engaged with reference to the usual course of the master’s trade, business, etc., . . . although his employment itself is casual as distinguished from regular employment.” 163 Tenn. at page 376, 43 S. W. (2d) at page 199.

We see no escape from the conclusion that Brade-meyer was employed in the usual course of Chickasaw’s business in the cleaning of these windows at the regular interval of each sixty days. The assignment of error directed to the holding of the Court to the contrary must be sustained.

The judgment of the Court below will be reversed, the cause remanded for further proceedings in accord-anee herewith, and costs of appeal adjudged against defendants in error.

Prewitt, J., not' participating.