Opinion
6 Div. 549.
May 29, 1930. Rehearing Denied June 26, 1930.
Appeal from the Circuit Court, Jefferson County; Roger Snyder, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellants.
If special finding of facts is too meager or omissive for a review, a bill of exceptions will be considered. Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97; Ex parte Shaw, 210 Ala. 185, 97 So. 694; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626. The existence of the relationship of employer and employee is essential as a basis for compensation under the act. Code 1923, §§ 7534, 7585(i), 7596(d); Ivey v. Railway Fuel Co., 211 Ala. 10, 99 So. 177. Such relationship, within the purview of the act, does not exist between a contractee and the employer of an independent contractor. United States Coal Iron P. F. Co. v. Fuller, 212 Ala. 177, 102 So. 25; Harris v. McNamara, 97 Ala. 181, 12 So. 103; United States Coal Iron P. F. Co. v. Caldwell, 208 Ala. 260, 94 So. 540; General Exchange Ins. Co. v. Findlay, 219 Ala. 193, 121 So. 711; Bugg v. Sanders, 219 Ala. 129, 121 So. 410; Republic I. S. Co. v. McLaughlin, 200 Ala. 204, 75 So. 962; Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; Woodward Iron Co. v. Brown, 167 Ala. 323, 52 So. 829; Republic I. S. Co. v. Luster, 192 Ala. 501, 68 So. 358; Hubbard v. Coffin Leak, 191 Ala. 494, 67 So. 697; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 So. 988. The voluntary rendition of service is not sufficient to constitute relationship of employer and employee under the Workmen's Compensation Act. Such services must be performed for hire and wages must be paid directly to the employee by the employer. Code 1923, §§ 7596(d), 7551 (a); Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906; Ex parte W. T. Smith Lbr. Co., 206 Ala. 485, 90 So. 807; Arterburn v. Redwood Co., 154 Minn. 338, 191 N.W. 924; State v. Industrial Comm., 155 Minn. 267, 193 N.W. 450; State ex rel. D. M. Gilmore Co. v. District Court, 147 Minn. 12, 179 N.W. 216.
Crampton Harris and Harold M. Cook, both of Birmingham, for appellee.
Where a building is erected upon the premises of the owner and the owner reserves to himself the ultimate power to order how the work is to be done, the owner is liable notwithstanding the mode is left to the judgment and discretion of another. Campbell v. Lunsford, 83 Ala. 517, 3 So. 522; Alabama Mid. R. Co. v. Coskry, 92 Ala. 254, 9 So. 202; Nelson v. American C. P. Co., 84 Kan. 797, 115 P. 578. The Workmen's Compensation Act is to be liberally construed. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Ex parte Central I. C. Co., 209 Ala. 22, 95 So. 472.
There was some evidence going to show that the injured workman voluntarily rendered services with the consent of the defendants, and which were accepted by them, and that they reserved the right to direct and control the workman in the performance of his work. These are the essentials of the common-law relation of master and servant, and the evidence is without dispute that the workman was paid a daily wage for his services.
This supports the conclusion and finding of the trial court, and necessitates the denial of the writ. Sloss-Sheffield Steel Iron Co. v. Crim, 219 Ala. 148, 121 So. 408; Ex parte W. T. Smith Lumber Co., 206 Ala. 485, 90 So. 807.
The substance of the defense was that Parsons, who was Kimbrough's immediate superior, was an independent contractor, and not an agent or servant of the defendants. While it may be conceded that the weight of the evidence sustained this theory, yet there was some evidence that Parsons was a superintendent of some of the construction work, and the evidence and the legitimate tendencies support the conclusion that his assumed relation as an independent contractor was a mere subterfuge; that in fact he was superintendent of the work. Code 1923, § 7585; Sloss-Sheffield Steel Iron Co. v. Crim, supra.
The amount of the award is sustained by the finding of fact, and, while there was no evidence showing that the workman had dependents, the fact of such dependents was averred in the complaint and was not denied in the answer of the Fair Park Amusement Company; its answer merely averring that "defendant denies that it had knowledge of plaintiff's dependents," and, so far as appears from the return to the writ of certiorari, the other defendant filed no answer.
Under these circumstances the trial court was justified in treating the averments of the complaint in this respect as confessed. The pertinent provision of the statute applicable here is that "within five days prior to the date fixed for the hearing of the controversy, the employer shall file a verified answer to the complaint setting up the facts which he relies on in defense thereof." Code 1923, § 7578.
The writ is therefore denied, and the petition is dismissed.
Writ denied; petition dismissed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.