Opinion
No. 3157.
Decided May 27, 1940.
A servant who temporarily leaves his employer to perform specific work for another becomes his servant during its performance.
During such temporary employment the servant is entitled to the benefit of the workmen's compensation act if the temporary employer has the right to control the servant and direct the details of his work.
In such case, if the temporary employer has procured workmen's compensation insurance its coverage extends to the temporary employee though his wages are paid by his original employer by agreement with the temporary employer and charged against him.
In such case, the premium to be paid by the temporary employer is to be calculated by including the wages thus paid to the temporary employee.
The provision of Laws 1937, c. 159, s. 1 that the act "shall not apply to workmen outside of the state" does not apply to a workman entitled to compensation in this State who in the course of his employment temporarily crosses the State boundary.
In a petition for workmen's compensation the petitioner may join the employer and the insurer where the policy provides for payment "whether claims or proceedings are brought against the" insurer "alone or in conjunction with" the assured.
PETITION, for compensation under the employers' liability and Workmen's Compensation Act (P. L., c. 178). Trial by the court.
The plaintiff's intestate was killed while working on an amphibian airplane at Moosehead Lake in Maine on August 28, 1937. The petition was originally brought against the Winnipesaukee Air Service. Later the Phoenix Indemnity Company was made a party defendant. Subject to the plaintiff's exception, the petition was dismissed as to the Winnipesaukee Air Service, and the Presiding Justice entered a decree for the plaintiff against the Phoenix Indemnity Company. A motion to set aside this decree was denied subject to the Indemnity Company's exception. Exceptions were also taken to the admission and exclusion of evidence.
George E. Bisson, the plaintiff's intestate, was a licensed airplane mechanic. He was in the general employ of Pynn Brown, Inc., at Laconia, as a repair man and automobile mechanic but, by an arrangement between Pynn Brown and the Winnipesaukee Air Service, he worked for the latter company whenever that company required his services. The Air Service had its base, so called, at The Weirs, about six miles distant from the Pynn Brown garage.
On August 26, 1937, employees of the Air Service transported a party by airplane from The Weirs to Mr. Kineo in Maine. At the beginning of the return trip, the plane, before leaving the water, struck a ledge in Moosehead Lake and became submerged. Notice of the accident was given Thomas Rice, president of the Air Service corporation, who called Pynn Brown by telephone and "gave instructions that Mr. Bisson was to go to Maine at once with Floyd Miller in another of the company's planes and remain there and assist under Miller's directions in raising the plane and reconditioning it."
These instructions were followed, and Miller and Bisson arrived at Moosehead Lake that afternoon. The following day, with the aid of local help, the plane was brought ashore. Rice, who had come on from Boston to inspect the plane, ordered the work to proceed, with Miller in charge. The next day Bisson, while attempting to start the motors, "presumably jumped into line with one of the propellers, was struck by a blade and instantly killed."
Although the Air Service had accepted the provisions of the employers' liability and workmen's compensation act, it denied liability on the ground that the decedent was not in its employ and because the accident did not occur in this state. The Phoenix Indemnity Company, insurer of the Air Service under a policy of employers' liability insurance, disclaimed coverage on the ground that the decedent was not an employee of the Air Service and because the sums paid for his services, not being paid directly to him, could not be considered in computing the amount of the premium. On these issues the court made the following findings and rulings:
"Mr. Thomas Rice was the president and substantially the owner of the Air Service. He was also the owner of a majority of the capital stock of Pynn Brown . . . . Mr. Bisson was about the only competent mechanic to work on airplanes and the arrangement between the two companies was that whenever his services were needed Pynn Brown would be notified and Mr. Bisson would report at the base or wherever required. For convenience the account of Bisson's time was kept by Pynn Brown and he was paid by that company at the same rate whether employed for the Air Service or for them, namely seventy cents per hour. For such time as he was working for the Air Service Pynn Brown charged that company ninety cents per hour. . . . There was no evidence that Bisson's name appeared on the payroll of the Air Service or that that company ever paid him personally anything for services, all payments being made through Pynn Brown, who charged the extra for bookkeeping and handling the account. This arrangement continued from the time Bisson went to work for Pynn Brown in May until his death the following August, during which time he worked for the Air Service . . . a little less than one-fourth of the time. . . .
"Bisson's employment by Pynn Brown was with an understanding that the Air Service should have the first call upon his services. From the time that he reported at The Weirs for the trip to Maine he was under the direction and supervision of the Air Service up to the time of the accident. That company furnished him transportation, paid his expenses, directed what was to be done and how the work was to be done, and the court is of the opinion and so finds that he was in the employ of the Winnipesaukee Air Service, Inc., at the time he was killed, but the court understands that the New Hampshire compensation statute then had no application to `workmen outside of the state,' and so rules as a matter of law the petition should be dismissed as to the Winnipesaukee Air Service, Inc.
"The plaintiff's right to recover against the Phoenix Indemnity Co. depends upon how said policy . . . issued by that company to the Winnipesaukee Air Service, Inc., is construed. It obviously was intended to cover the payment of compensation according to the New Hampshire law for injuries, including those resulting in death, sustained in any other state in the course of duties temporarily or irregularly performed outside the State of New Hampshire. This defendant claims that because no wages were paid directly to Bisson his wages could not be considered in computing the premium. The Air Service kept a record of the time Bisson was rendering service to it and also of the amount paid to Pynn Brown for that service, so there would seem to be no difficulty in determining the amount paid by the Air Service for Bisson's labor although it was paid through Pynn Brown, and the amounts so paid could be used in computing the premium.
"The court is of the opinion and so finds and rules that the Air Service had complied with the terms and requirements of said policy and that the plaintiff is entitled to recover against it."
Transferred by Young, J., on both the plaintiff's and the Indemnity Company's exceptions.
Cheney, Nighswander Lord (Mr. Nighswander orally), for the plaintiff.
Ivory C. Eaton (by brief and orally), for the defendants.
The servant of a general employer who is hired out to another for a particular service becomes ordinarily the servant of the latter during the performance of that service. Gagnon v. Dana, 69 N.H. 264. And "this principle has full application to the master and servant relation" under compensation laws (Parsons v. Daly, 114 Conn. 143, 150), except, of course, in the case of those statutes which contain a provision to the contrary. 71 C. J. 403, 404. The workmen's compensation law of this State contains no such restrictive provision.
In determining the relation between the workman and the person to whom he is hired out, the decisive inquiry is whether that person has the right to control the servant and direct the details of his work. If the servant is subject to such direction and control, he is for the time being the servant of the temporary employer. Manock v. Company, 86 N.H. 104, 106, and cases cited. See, also, McCarthy v. Souther, 83 N.H. 29, 37; Porter v. Company, 83 N.H. 334; Hutchins v. Insurance Co., 89 N.H. 79; Donovan v. Mills, 90 N.H. 450.
In the present case the trial court has found that the decedent from the time he reported at The Weirs up to the moment of the accident was under the direction and supervision of the Air Service and that he was therefore in the employment of that company at the time he was killed. These findings are fully warranted by the evidence. The president and service manager of Pynn Brown testified that he had nothing at all to do with Bisson after he left their garage, and the treasurer and general manager stated that Bisson "was to take his orders from the Winnipesaukee Air Service."
Section 1 of chapter 159 of the Laws of 1937 (in force at the time of the decedent's death), after enumerating the employments covered by the compensation act, provides that the act "shall not apply to workmen outside of the state." It should be noted that the words "outside of the state" do not refer specifically to the place where an accident occurs but are used to designate a definite class of workmen. Fairly construed, the limitation applies to workmen who, although in the service of one who has accepted the provisions of the New Hampshire act, are nevertheless regularly engaged in work in another state. If the Legislature had intended the act to be inoperative whenever a workman in the course of his employment crosses the state boundary, it is probable that words which more clearly express that intent would have been chosen.
By the terms of the policy which the Phoenix Indemnity Company issued to the Air Service that company agreed "as respects personal injuries sustained by employees" of the Air Service, "including death at any time resulting therefrom," to pay "to any person entitled thereto under the Workmen's Compensation Law" the "entire amount of any sum due." This undertaking is declared by the policy to be direct obligation enforceable against the company "in any manner permitted by law, whether claims or proceedings are brought against the Company alone or jointly with" the Air Service. Furthermore, by a rider attached to the policy, coverage is extended to employees sent by the employer "to perform duties temporarily or irregularly outside the State of New Hampshire."
Liability is denied, however, on the ground that the premium paid by the Air Service was based on the total remuneration paid its employees and that the decedent received no remuneration from the Air Service. This contention ignores the substance and effect of the arrangement made with Pynn Brown for the division of the decedent's time. The Air Service was none the less his paymaster because the wages which he earned while working for that corporation were conveniently paid to Pynn Brown.
The advance premium paid the indemnity company was the minimum premium. The policy was issued July 2, 1937, and expired one year from that date. The basis of computation for the final premium payment included the remuneration paid all employees, and in order to make this computation the Indemnity Company was entitled to an audit of the Air Service's books within a year after the expiration of the policy. The court has found on sufficient evidence that the Air Service kept records from which the amount paid for the decedent's services could be ascertained without difficulty. The president of the Air Service testified: "We carried everything against his [Bisson's] name, of his hours and everything . . . showing the hours he was paid for and worked for us."
The Indemnity Company's exception to the denial of its motion to set aside the decree is denied. The plaintiff's exception to the dismissal of the petition as to the Air Service is sustained. All other exceptions are understood to be waived.
Judgment for the plaintiff.
All concurred.