Fidelity & Deposit Co. v. Brush

[449]

MELVIN, J.

A writ of

certiorari

was issued, directed to the Industrial Accident Commission, for the purpose of reviewing an award of compensation to Martin A. Brush, a laborer injured while cutting wood on the premises of the Bound Valley Land Company.

The father of the applicant, one Seymour Brush, had made an agreement with the superintendent of the Land Company’s property to cut sixty to eighty cords of wood, or as much as would be required for the use of the company in its Mins for the ensuing year. By the terms of this arrangement Seymour Brush was to be paid $1.75 a cord for firewood and six cents for each post cut by him. He was not required to cut any fixed amount of wood, but there was an understanding that he was to keep at work until told by Harrington, the superintendent, that a sufficient quantity of cut wood had been produced. There was no agreement regarding the hours of work nor the methods to be pursued. Brush entered into an arrangement with his son, Martin A. Brush (the man who was injured subsequently), whereby they agreed that they should work together, pile their wood together, and have it measured, and that the amount received for the work should be equally divided between them. The applicant testified that Mr. Harrington told him at times to assist his father with the work. This was denied by the superintendent, but giving to the testimony of Martin Brush all possible force it would not justify a finding that he was hired ‘by the representative of the Bound Valley Land Company to do the chopping. The father received payment whenever he asked the Land Company for an advance and the final settlement was made with him. The company was not a party to the agreement whereby the proceeds of the work were to be equally divided. The most that may be said of the company’s participation in causing Martin to be engaged in the work is that its representative knew he was so employed and approved of his activity.

In holding that the father and the son were both employees of the Land Company, the Industrial Accident Commission sought to differentiate this case from

Donlon Brothers

v.