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A. Absolutely. Q. You did not furnish the appliances? A. No, sir.
Q. It wasn't the understanding between you that he keep a record of the time and base his charges on the time? A. None at all. No arrangement was made with regard to whether he should be paid by the hour or the amount. Practically the exact words to Mr. Cummings from me were 'Mr. Cummings, you put the stock in place; hire whatever help you need, present as reasonable a bill as possible when the job is finished and we will pay the bill.'"
In Matter of Bargey v. Massaro Macaroni Co. (218 N. Y. 410) it was held that the deceased, who was a carpenter engaged in putting a partition on the first floor of the building, the second and third floors of which the corporation occupied as its factory, was not an employee of the corporation within the meaning of the law. In Matter of Rheinwald v. Builders' Brick & Supply Co. (supra) the Commission by a divided court held Rheinwald was an independent contractor and refused compensation. It then certified to the court this question: "In view of the evidence in this case, was Rheinwald an employee within the meaning of the Workmen's Compensation Law?” By a divided court it was held that he was an employee, and the claim was remanded to the Commission to award compensation. Upon appeal from such award it was reversed and the claim dismissed. (174 App. Div. 935.) Upon appeal the order was affirmed, the court holding that Rheinwald was an independent contractor. (223 N. Y. 572.) In Matter of McNally v. Diamond Mills Paper Co. (223 N. Y. 83) the claimant agreed to move the engine from the depot to the plant for a lump sum. The manufacturer agreed to furnish an engineer to superintend the installation. The court said: "That he was a contractor while engaged in transporting the engine from the railroad to the mill may be conceded. But when that contract had been performed, he assumed a new relation. He was then employed by the day to work as a laborer with others. He was not in control of the job; he had no power of superintendence or direction; he had no other rank than the regular employees of the mill who were with him; he took his orders from the engineer whom the mill had placed in charge. In this situation, the distinctive tokens of the independent contractor are lacking. The claimant for the purposes of this job was an employee, and nothing more."
I think it must be held that Cummings was an independent contractor and not an employee. I do not think that an independent contractor, by the amendment of 1916 to the definition of an employee, is entitled to compensation even though the employer was engaged in a hazardous employment. The cases cited by the prevailing opinion of Matter of Dose v. Mochle Lithographic Co. (221 N. Y. 401) and Matter of McNally v. Diamond Mills Paper Co. (223 id. 83) were not cases of an independent contractor, but one of employees.
The award should be reversed and the claim dismissed. H. T. KELLogg, J., concurred.
Upon further appeal in the Litts case, the Court of Appeals reversed the Appellate Division's order and dismissed the claim
with opinion holding Litts to have been an independent contractor. Of the definition of "employee" in Workmen's Compensation Law, § 3, subd. 4, it said:
This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employee and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employers and employees, and an independent contractor is not within its protection.
The opinion in full is as follows:
LITTS V. RISLEY LUMBER CO., 224 N. Y. 321, Oct. 29, 1918.
COLLIN, J.: The state industrial commission decided that Burt Litts died from injuries received as an employee of the Risley Lumber Company while in the course of his employment, under conditions making the Workmen's Compensation Law (Cons. Laws, ch. 67), applicable. They, therefore, made an award of compensation to the claimants, which the Appellate Division affirmed by a decision not unanimous. The evidence, however, is not conflicting. We are to determine whether or not it tends to sustain the finding that Litts was when injured an employee of the company within the intendIment of the act.
Three high smokestacks were a part of the industrial plant of the company at Rock Rift, New York. In the spring of 1917 Litts agreed with the company that he would paint the stacks for the sum of fifty dollars. Litts was to furnish the ropes, tackle, scaffolding and implements. The company was to supply the paint and pay the wages of a man to help Litts. On August 21, 1917, the company wrote to Litts, who had not then painted the stacks, as follows:
"WALTON, N. Y., August 21, 1917.
"Mr. BERT LITTS, Readburn, N. Y.:
"DEAR SIR.- When do you expect to be able to paint the stacks that we talked to you about this spring? This ought to be done before the ovens and the boilers are fired up. Yours truly,
H. C. MCKENZIE, Treas."
On or about the twenty-eighth day of August, 1917, Litts appeared at the plant of the company with the articles furnished by him necessary for painting the stacks. He said to Bailey, the foreman of the company: "Bailey, I don't know who I can get. Can you furnish me a helper for a little while?" Bailey sent to him McGraw who was a day laborer employed by and on the payroll of the company. Litts said he would do. McGraw by means of a rope helped to pull Litts up aside the stacks and hold him when he wanted to stop. On the thirty-first day of August, Litts, because
of the breaking of the rope, fell and was so injured that he died. On August thirtieth, Litts, being unable to work on the stack because of rain, told the foreman he was going home. The foreman gave him inside painting to do which was kept account of separately from that of painting the stacks.
The act contains this definition: "Employee' means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants." (Section 3, subdivision 4.) This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employee and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employers and employees, and an independent contractor is not within its protection.
In the instant case Litts was an independent contractor. He agreed to do a specific piece of work for the company. In doing it he had absolute control of himself and his helper. He was independent as to when, within a reasonable time after the agreement was made between him and the company and as to where he should commence the work. He was free to proceed in the execution of it entirely in accordance with his own ideas. He was not to any extent subject to the directions of the company in respect of the method, means or procedure in the accmplishment. He was not subject to a discharge by the company because he did the painting in one way rather than in another. Those facts, considered by themselves, would constitute him an independent contractor. In the relation of employer and employee the employer has control and direction not only of the work or performance and its result, but of its details and method and may discharge the employee disobeying such control and direction. (Uppington v. City of New York, 165 N. Y. 222, 232; Hexamer v. Webb, 101 N. Y. 377; McColligan v. Penna. R. R. Co., 214 Penn. St. 229; Linnehan v. Rollins, 137 Mass. 123; Bennett v. Truebody, 66 Cal. 509; Zeitlow v. Smock, 117 N. E. Rep. 665 [Indiana Supreme Court, November, 1917]; Holbrook v. Olympia Hotel Co., 200 Mich. 597; Fidelity & Deposit Co. v. Brush, 168 Pac. Rep. 890 [California Supreme Court, November, 1917]; Thompson v. Twiss, 90 Conn. 444; Messmer v. Bell & Coggeshall Co., 133 Ky. 19.) Moreover, the agreement to paint the three stacks for the specified sum of fifty dollars is indicative, through not conclusive, that Litts became an independent contractor.
The fact that during the progress of the work the company told Litts to do certain acts which were essential to the performance of the agreement, that is, to scrape off and paint well the rusty spots, is not inconsistent with his status or relation as an independent contractor. The relation permitted the company to exercise the degree of control essential to secure the fulfillment of the contract and which did not deprive Litts of the right and opportunity to do the painting in the way he wished. (Uppington v. City of New York,
165 N. Y. 222; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332; Carleton v. Foundry & Machine Products Co., 165 N. W. Rep. 816 [Michigan Supreme Court, December, 1917].)
The fact that the company furnished the paint and the helper does not conflict with the evidence here that Litts was independent of and uncontrolled by the company in the mode and means of doing the work. Litts was free to apply the paint as he chose. The helper was subject to his orders alone. The power was his throughout the performance of the job to deter mine and direct the particular manner in which the paint and the appliances should be used and the acts of the helper. (Perham v. American Roofing Company, 193 Mich. 221; Miller v. Minn. & N. W. Ry. Co., 76 Iowa 655.)
The order should be reversed and the determination of the state industrial commission annulled, and claim dismissed, with costs against the state industrial commission in this court and in the Appellate Division.
HISCOCK, Ch. J., CHASE, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ.,
Order reversed, etc.
The Appellate Division reheard the Cummings case and upon authority of the Court of Appeals decision in the Litts case, reversed the award to Mrs. Cummings, January 14, 1919.
November 22, 1918, the Appellate Division, upon authority of the decision of the Court of Appeals in the Litts case, reversed an award to a junk gatherer injured while doing for a specified sum a special job of breaking up a balance wheel for a junk dealer: Levine v. Gold's Sons, S. D. R., vol. 14, p. 691, Bul., vol. 3, p. 78, Nov. 15, 1917; 186 App. Div. 932, Nov. 22, 1918.
A piece-worker upon coats worked at his own home and employed and directed help; the Commission awarded him compensation for infection due to prick of a needle; upon appeal, the insurance carrier could not persuade the courts to distinguish his case from Fiocca v. Dillon, S. D. R., vol. 7, p. 399, Feb. 1, 1916; 175 App. Div. 957, Nov. 15, 1916, and to declare him an independent contractor; the award was affirmed without opinion: Liberatore v. Friedman, Case No. 60592, Feb. 8, 1918; 185 App. Div. 900, July 2, 1918; 224 N. Y. Rep. 710, Nov. 26, 1918.
A junk dealer's employee was cutting iron from a bridge; the bridge broke down, injuring him fatally; the Commission awarded death benefits; upon appeal, the carrier attempted to prove that he was an independent contractor; the Appellate Division, however, affirmed the award unanimously and without
opinion: White v. Berkman, Death Case, No. A-606, April 19, 1918; 186 App. Div. 926, Nov. 13, 1918.
A workman was removing the awnings from fourteen apartment houses owned by a company. He was a piece-worker at ten cents per awning. In the course of the task he fell, breaking his arm and otherwise injuring himself. The Commission awarded compensation to him as a claimant against the company. Upon appeal the company argued that he was not its employee but was either an independent contractor himself or was in the employ of an independent contractor with whom it had had dealings and who had sent him to it. The Appellate Division affirmed the award upon evidence set forth in the following opinion:
ABROMOWITZ V. HUDSON VIEW CONSTRUCTION Co., 188 App. Div. 356, June 30, 1919.
The decision of this appeal depends upon whether the claimant an employee of the Hudson View Construction Company, or an independent contractor.
The construction company was the owner and engaged in the maintenance and care of apartment houses in the city of New York, one of which was at 884 Riverside drive. On such apartment houses were several thousand awnings which were put up and taken down each year. On September 23, 1918, while the claimant was engaged in taking down an awning at 884 Riverside drive, he lost his balance and fell from the third story to the ground, and sustained injuries which disabled him from working from that date to December 2, 1918, at which time he was still disabled. The State Industrial Commission awarded him compensation for ten weeks at the rate of fifteen dollars per week, and continued the claim for further hearing. From such award this appeal has been taken.
From April, 1918, the claimant had been employed by Benjamin Feinberg, a manufacturer of window shades and awnings, as an awning hanger and remover, working by the day, and a greater part of the time at piece work. In September, 1918, Feinberg at the office of the construction company had a conversation in which it was stated to him that the construction company wanted all the awnings removed from its apartment houses, and asked him if he could send the same man who took them off before. Feinberg said he did not know where the man was, but that he had a good man whom he could recommend who would take the awnings down and charge them ten cents an awning, because that is what he paid him. Feinberg told claimant of the conversation and sent him to the construction company, telling him to go and look at the job and see if he wanted to take it on himself. He went to the construction company and said to them that he was the man whom Feinberg had sent about the awnings, and Mr. Friedman, the representative of the construction company, told him to go ahead, and for each awning he