3. MASTER AND SERVANT-WORKMEN'S COMPENSATIONINDEPENDENT CONTRACTORS.

That an independent contractor employed to paint certain smokestacks for a corporation is directed by the corporation during the performance of the work to scrape off and paint well the rusty spots does not affect his status as an independent contractor within the Workmen's Compensation Law.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

4. MASTER AND SERVANT-WORKMEN'S COMPENSATIONINDEPENDENT CONTRACTORS.

That an independent contractor, undertaking to paint certain smokestacks for a corporation, is furnished paint and a helper by the corporation does not affect his status as an independent contractor within the Workmen's Compensation Law.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Act by May D. Litts and others, opposed by the Risley Lumber Company, employer, and others. An award by the State Industrial Commission was affirmed by the Appellate Division (170 N. Y. Supp. 1093), and the employer appeals. Reversed. ·

E. C. Sherwood, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (E. Č. Aiken, of Albany, of counsel), for State Industrial Commission.

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 (Consol. Laws, c. 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 intendment of the act.

Three high smokestacks were a part of the industrial plant of the company at Rock Rift, N. Y. In the spring of 1917 Litts agreed with the company that he would paint the stacks for the sum of $50, 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 28th 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 pay roll 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 31st day of August, Litts, because of

the breaking of the rope, fell and was so injured that he died. On August 30th, 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, subd. 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 employer and employees, and an independent contractor is not within its protection.

[1] 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 accomplishment. 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.

[2] 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, 59 N. E. 91, 53 L. R. A. 550; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. St. Rep. 703; McColligan v. Penna. R. R. Co., 214 Pa. 229, 63 Atl. 729, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Bennett v. Truebody, 66 Cal. 509, 6 Pac. 329, 56 Am. Rep. 117; Zeitlow v. Smock (Ind. 1917) 117 N. E. 665; Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876; Fidelity & Deposit Co. v. Brush (Cal. 1917) 168 Pac. 890; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506; Messmer v. Bell & Coggeshall Co., 133 Ky. 19, 117 S. W. 346, 19 Ann. Cas. 1. Moreover, the agreement to paint the three stacks for the specified sum of $50 is indicative, though not conclusive, that Litts became an independent contractor.

[3] 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, 59 N. E. 91, 53 L. R. A. 550; Boyd v. Chicago & N. W. Ry. Co., 217 11. 332, 75 N. E. 496, 108 Am St. Rep. 253; Carleton v. Foundry & Machine Products Co. (Mich. 1917) 165 N. W. 816.

[4] 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 determine 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 Co., 193 Mich. 221, 159 N. W. 140; Miller v. Minn. & N. W. Ry. Co., 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 258. 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, C. J., and Chase, Cuddeback, Hogan, McLaughlin, and Crane, JJ., concur.

Ordered reversed, etc.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD Department.

ANDREWS

V.

BUTLER MFG. CO. ET AL.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW -ABSENCE OF NOTICE-PREJUDICE-PRESUMPTION AND BURDEN OF PROOF.

Under Workmen's Compensation Law, § 18, providing that failure to give the prescribed notice of injury shall bar claim, unless excused on the ground that the employer has not been prejudiced thereby, there is a presumption, which must be overthrown by claimant, of prejudice from want of speedy opportunity to investigate question of accident.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

Appeal from State Industrial Commission.

Proceeding by Frank H. Andrews, employee, for compensation under the Workmen's Compensation Law, opposed by the Butler Manufacturing Company, employer, and the American Mutual Compensation Insurance Company, insurance carrier. From a decision of the State Industrial Commission, denying an award, claimant appeals. Affirmed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Francis Preston, of Syracuse (P. Sidney Hand, of Syracuse, of counsel), for appellant.

Jeremiah_F. Connor, of New York City, for respondents.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

WOODWARD, J. The claimant demanded compensation for an injury to his eye, practically destroying its usefulness, alleged to have been due * Decision rendered, November 13, 1918. 172 N. Y. Supp. 405.

to an accidental flying of a spark from a furnace fire under a boiler. The Sate Industrial Commission found the fact of the accident, that it was within the statute, but refused to make an award, upon the ground that no notice in writing was given to the employer or the insurance carrier, and that both of these were prejudiced by the failure to comply with the requirements of section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67). The claimant appeals from this determination.

The determination of the State Industrial Commission should be affirmed. The presumption is, in the absence of evidence to the contrary, that the failure of the claimant to give the notice required by law is prejudicial to the employer and insurance carrier. It is only where the claimant is able to show that the notice could not have been given, or that the insurance carrier and employer were not, in fact, prejudiced by the failure to give the notice, that there is any justification for the State Industrial Commission to excuse the failure. Sicardi v. Sarnoff Hat Co., 176 App. Div. 13, 162 N. Y. Supp. 337. It is not enough, in given case, that the injury might not have been limited in its effect by prompt action; the employer and the insurance carrier have a right to an opportunity to inquire into the happening of the accident. It is a very simple matter, on discovering an injury to an eye, to fix the time and place of the happening of the same, to come within the provisions of the Workmen's Compensation Law, though in fact it may have been received under circumstances involving no liability, and those who are called upon to pay for the injury have a right to have the matter called to their attention in the manner prescribed by the act. Where this is not done, the claimant must afford the evidence to warrant the State Industrial Commission in excusing the neglect. That is the condition upon which the right to compensation, without respect to the negligence of the employer, is based, and it may not be disregarded.

The determination of the State Industrial Commission should be affirmed. All concur.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD Department.

WILKES et al.

ข.

ROME WIRE CO. et al.

In re EMPLOYERS' LIABILITY ASSUR. CORRPORATION, Ltd.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -DEPENDENTS.

Under evidence, heid, mother and youngest brother of deceased were not dependent on him for support at time of his death, within Workmen's Compensation Law.

(For other cases, see Master and Servant, Dec. Dig. § 405 [5].)

* Decision rendered. Nov. 13. 1918. 172 N. Y. Supp. 406.

Proceeding under the Workmen's Compensation Law by Elizabeth Wilkes and another, mother and brother, as dependents of James Wilkes, deceased, for compensation, opposed by the Rome Wire Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. Awards were made, and the employer and insurance carrier appeal. Reversed and dismissed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Bertrand L. Pettigrew, of New York City, for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York -City (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent State Industrial Commission.

Michael J. Larkin, of Rome, for respondents Wilkes.

LYON, J. The question presented by this appeal is whether the mother and youngest brother of the deceased were dependent upon him for support at the time of his death.

James Wilkes was in the employ of the Rome Wire Company and met an accidental death. He was receiving an average of $15.80 per week, with 10 per cent bonus. Of this sum he paid his mother $10 per week, "$5 for his board, and $5 towards the home, and to help send the little brother to school, and to buy things." The father was employed in the Rome Iron Mills, Incorporated. He had received in wages for the week immediately preceding the son's death $39.96. He received the week preceding $44.96. His wages for the year were $1,611.81, or an average of $31.60 per week. He gave his wife $20 per week for the support of his family, which consisted of himself, his wife, and their children, James Arthur, Joseph, Howard, and Florence. None of them, excepting James, Howard, and Florence, boarded at home. The mother received from Arthur, Joseph, and Florence $3 each per week, making her weekly income, with the $10 received from James and $20 received from the husband, $39 per week. The husband spent his remaining $11.60 for clothes, filling or grading about the house, and anything the family needed. The wife testified that it cost to support the family during April, the month of the death of the son, $15 to $20. They bought the house in July, 1916 and during the nine months between that date and April 2d, when James was killed, paid $275 thereon, an average of about $30 per month. Furthermore, during the previous years of idleness of the father, debts had accumulated to a large amount. These had been paid off. The son's life insurance of $600 was applied, $400 evidently in the purchase of the adjoining lot, and $200 in payment on the house. This made the aggregate payments on the house $500, with one payment of $25. The wife stated over her own signature that the husband was paying her but $10 per week, and the husband that he was earning but $20 per week. In fact, he was paying her $20 per week, and his earnings for six weeks immediately preceding the death of James were upwards of $40 per week, excepting for two weeks, when they were $39.96 and $39.09 per week. He also testified that in the winter he could not work, while the payroll shows no lessening of his earning power for the winter months. We think this is not a family for whose benefit the Workmen's Compensation Law (Consol. Laws, c. 67) was enacted.

The award must be reversed, and the claim dismissed. All concur.